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UNITEDSTATES
SECURITIES AND EXCHANGECOMMISSION
Washington, D.C. 20549
Form
8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
August 30, 2024
Date of Report (Date ofearliest event reported)
AGBA GROUP HOLDINGLIMITED
(Exact Name of Registrantas Specified in its Charter)
British Virgin Islands 001-38909 N/A
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
AGBA Tower N/A
68 Johnston Road
Wan Chai
,
Hong Kong
SAR
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephonenumber, including area code:
+
852
3601 8363
N/A
(Former name or formeraddress, if changed since last report)
Check the appropriatebox below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the followingprovisions:
Writtencommunications pursuant to Rule 425 under the Securities Act
Solicitingmaterial pursuant to Rule 14a-12 under the Exchange Act
Pre-commencementcommunications pursuant to Rule 14d-2(b) under the Exchange Act
Pre-commencementcommunications pursuant to Rule 13e-4(c) under the Exchange Act
Securities registered pursuant to Section12(b) of the Act:
Title of each class Trading Symbol(s) Name of each exchange
on which registered
Ordinary Shares, AGBA NASDAQ
$0.001 par value Capital Market
Warrants, each warrant exercisable for one-half AGBAW NASDAQ
of one Ordinary Share for $11.50 per full share Capital Market
Indicate by check markwhether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 (17 CFR (s)230.405) or
Rule12b-2 of the Securities Exchange Act of 1934 (17 CFR (s)240.12b-2).
Emerging growth company
If an emerging growthcompany, indicate by check mark if the registrant has
elected not to use the extended transition period for complying with any new
orrevised financial accounting standards provided pursuant to Section 13(a) of
the Exchange Act.
Item 1.01 Entry into a Material Definitive Agreement
Amended And Restated Merger Agreement
As previously disclosed, on April 16, 2024, AGBAGroup Holding Limited, a
British Virgin Islands business company ("
AGBA
" or "
Parent
"), entered intothat certain Agreement and Plan of Merger (the "
Original Merger Agreement
"), by and between AGBA, its wholly ownedsubsidiary AGBA Social Inc. ("
Merger Sub
"), Triller Corp., a Delaware corporation ("
Triller
" orthe "
Company
") and Bobby Sarnevesht, solely as representative of the Triller stockholders.
On August 30, 2024, the parties further enteredinto an Amended and Restated
Merger Agreement (as amended and restated, the "
Merger Agreement
"). The Merger Agreementamends, restates and supersedes the Original Merger
Agreement.
Subsequent to the signing of the Original MergerAgreement, on April 18, 2024,
Triller Hold Co LLC, a Delaware limited liability ("
Triller LLC
") and Triller have effectuateda reorganization (the "
Triller Reorganization
"), as a result of which Triller became the 100% owner of Triller LLC.
Pursuant to the Merger Agreement, (a) AGBAwill domesticate to the United
States as a Delaware corporation (the "
AGBA Domestication
"), pursuant to which,among other things, all AGBA ordinary shares, par value
$0.001 per share ("
AGBA Ordinary Shares
") willautomatically convert into the same number of shares Delaware Parent
Common Stock, as defined below (AGBA, when domesticated as aDelaware
corporation, is sometimes referred to as "
Delaware Parent
") and (b) after giving effect to the TrillerReorganization and the AGBA
Domestication, Merger Sub will be merged into Triller (the "
Merger
), with Triller survivingthe Merger and becoming a wholly owned subsidiary of
Delaware Parent. As a result of the Merger, AGBA, as Delaware Parent
shallchange its name to "Triller Group Inc." and expects to change its Nasdaq
ticker to "ILLR."
Consideration
The merger consideration provided for in the MergerAgreement (the "
Merger Consideration
") will be an aggregate of 441,620,209 shares of Delaware Parent common
stock,par value $0.001 per share ("
Delaware Parent Common Stock
"). Delaware Parent (i) will issue 299,897,852 shares of DelawareParent Common
Stock to the current common stockholders of the Company, (ii) will issue
37,702,230 shares of preferred stock to the currentpreferred stockholders of
the Company (the holders of the Company's common and preferred stock are
referred to together as the "
Stockholders
"),and (iii) will convert all existing Company restricted stock units into
54,020,128 Delaware Parent restricted stock units; and DelawareParent also
will reserve an aggregate of 54,020,128 shares of Delaware Parent Common Stock
for future issuance upon the vesting of suchrestricted stock units.
A total of 50,000,000 shares of Delaware Parent CommonStock will be held in
escrow as reserved shares, which shall be applied toward future settlement of
certain Triller legal and financialobligations.
The Merger Agreement also provides that BobbySarnevesht, Triller's Executive
Chairman and Chief Executive Officer, will be named as a director of Delaware
Parent.
The Closing
AGBA and the Company have agreed that the closingof the Merger (the "
Closing
") shall occur as soon as possible, subject to regulatory clearance, approval
by AGBA'sshareholders and the other closing conditions provided for in the
Merger Agreement and summarized below.
1
Representations and Warranties
In the Merger Agreement, the Company makes certainrepresentations and
warranties (with certain exceptions set forth in the disclosure schedules to
the Merger Agreement) relating to, amongother things: (1) Organization and
Good Standing; Books and Records; (2) Authority and Enforceability; (3)
Capitalization, Stock Rights,Consideration Spreadsheet and Subsidiaries; (4)
No Approvals, No Conflicts; (5) Financial Statements, No Undisclosed
Liabilities; (6)Absence of Certain Changes or Events; (7) Property; (8) Labor
and Employment Matters, Nondisclosure and Non-Competition Agreements;
(9)Employee Benefit Plans; (10) Intellectual Property; (11) Contracts; (12)
Claims, Legal Proceedings, and Orders; (13) Corporation Permits,Compliance
with Laws; (14) Environmental Compliance; (15) Taxes; (16) Tax Consequences;
(17) Related Party Interests; (18) Insurance;(19) Brokers or Finders; (20)
Bank Accounts; (21) Customers and Suppliers; and (22) Full Disclosure.
In the Merger Agreement, AGBA makes certain representationsand warranties
relating to, among other things: (1) Organization and Good Standing; (2)
Authority and Enforceability; (3) Capitalization;(4) Brokers; (5) No
Approvals; No Conflicts; and (6) Full Disclosure.
The representations and warranties of the partiesexpire as of the Closing.
Conduct Prior to Closing; Covenants PendingClosing
The Company has agreed to operate its businessin the ordinary course,
consistent with past practices, prior to the closing of the transactions
contemplated by the Merger Agreement(with certain exceptions) and not to take
certain specified actions without the prior written consent of AGBA.
The Merger Agreement also contains customary pre-closingcovenants.
Conditions to Closing
Company's Conditions to Closing
The obligations of the Company to consummate thetransactions contemplated by
the Merger Agreement are conditioned upon each of the following, among other
things: (1) the representationsand warranties of AGBA and Merger Sub being, if
qualified as to materiality, true and correct in all respects, and, if not so
qualified,true and correct in all material respects, on and as of the date of
the Merger Agreement and the closing date of the transactions; (2)AGBA and
Merger Sub complying with all of its obligations under the Merger Agreement in
all material respects; (3) the consummation ofthe transactions being permitted
by applicable law to which AGBA, Merger Sub, or the Company is subject; (4)
closing deliveries havingbeen delivered to the Company by AGBA, including
among other things, customary closing certificates, certificate of merger
executed byMerger Sub; the certificate of discontinuance, executed Operative
Documents (as defined below); and (5) no third party approvals beinganticipated
by the parties.
AGBA and Merger Sub's Conditions to Closing
The obligations of AGBA and Merger Sub to consummatethe transactions
contemplated by the Merger Agreement are conditioned upon each of the
following, among other things: (1) the representationsand warranties of the
Company being, if qualified as to materiality, true and correct in all
respects, and, if not so qualified, trueand correct in all material respects,
on and as of the date of the Merger Agreement and the closing date of the
transactions; (2) theCompany complying with all of its obligations under the
Merger Agreement in all material respects; (3) the consummation of the
transactionsbeing permitted by applicable law to which AGBA, Merger Sub, or
the Company is subject; (4) there having been no material adverse effectto the
Company; (5) no order having been issued by any court, regulatory or
governmental body limiting the consummation of the Mergeror AGBA's ownership,
conduct, or operation of the Company's business following the Closing; (6) the
Company having deliveredto AGBA written evidence the Stockholders are
accredited investors, as such term is defined in SEC Regulation D; and no more
than 35 Stockholdersshall have failed to deliver such written evidence; (7) no
third party approvals being anticipated by the parties; and (8) closing
deliverieshaving been delivered to AGBA by the Company, including among other
things, customary closing certificates, third party consents, finalclosing
consideration spreadsheet, written resignation of each director and officer of
the Company, statement certifying interests inthe Company do not constitute
"United States real property interests", written consents evidencing the
stockholder approval,Operative Documents (as defined below), and certificate
of merger executed by the Company.
2
Termination
The Merger Agreement may be terminated at anytime prior to the Closing by:
(a) the written consent of AGBA and the Company;
(b) AGBA, if AGBA reasonably concludes in good faith that any of AGBA and Merger Sub's Conditions to closing is or
becomes impossible to satisfy (other than solely as a result of any breach of the Merger Agreement by AGBA);
(c) AGBA, in the event of a breach by the Company of any representation, warranty,
covenant, or agreement contained in the Merger Agreement and the other agreements,
documents, and certificates referenced in the Merger Agreement to be executed and
delivered on the Agreement Date or prior to or at the Closing (collectively, the "
Operative Documents
") that has not been cured or is not
curable by the Company within 15
days after AGBA delivers notice to
the Company regarding such breach;
(d) the Company, in the event of a breach by AGBA of any representation,
warranty, covenant, or agreement contained herein or in any Operative
Document that has not been cured or is not curable by AGBA within 15
days after the Company delivers notice to AGBA regarding such breach;
(e) the Company if AGBA experiences a material adverse effect, or by AGBA if the Company experiences a material adverse effect; or
(f) AGBA, if the Company has not provided the notices required pursuant to
Section 4.10 no later than five business days after the Agreement Date.
Lock-Ups
Of the 299,897,852 shares of Delaware Parent CommonStock to be issued to the
Stockholders at the Closing, holders of an aggregate of 285,082,183 shares of
Delaware Parent Common Stock willbe bound by a standard lock-up covenant as to
those shares for a period of 165 days after the date of Closing.
All shares of Delaware Parent Preferred Stockto be issued to the Stockholders
at the Closing will be bound by a standard lock-up covenant for a period of 12
months after the dateof Closing. Furthermore, after the one year anniversary,
holders of Delaware Parent Preferred Stock will only be permitted to convertan
amount equal to two percent (2%) of the total number of shares of Delaware
Parent Preferred Stock on a monthly basis. Shares convertedinto Delaware
Parent Common Stock shall be free of any lock-up restrictions.
The foregoing description of the Merger Agreementdoes not purport to be
complete and is qualified in its entirety by the terms and conditions of the
actual agreement, a copy of whichis included as Exhibit 2.1 to this Current
Report on Form 8-K, and incorporated herein by reference.
Related Agreements
Super Voting Agreement
Immediately prior to the Closing, Delaware Parent will issue an aggregateof
37,496 shares of super voting Series B Preferred Stock to Green Nature Limited
("
GNL
"), the holder of the DelawareParent Series B Preferred Shares and an
affiliate of AGBA's current majority shareholder, which shares shall give GNL
approximately65% of the total voting power of all voting shares of Delaware
Parent. At the Closing, GNL and the Company will enter into a voting
agreement(the "
Voting Agreement
") so as to provide that GNL will vote its Series B Preferred Shares in favor
of electing Mr.Sarnevesht as a director of Delaware Parent through December
31, 2025.
3
The foregoing description of the Super VotingAgreement does not purport to be
complete and is qualified in its entirety by the terms and conditions of the
actual agreement. A formof the Super Voting Agreement is included as Exhibit
10.1 to this Current Report on Form 8-K, and incorporated herein by reference.
Item 7.01 Regulation FD Disclosure
On September 3, 2024, AGBA and Triller issueda press release announcing the
execution of the Merger Agreement. Attached hereto as Exhibit 99.1 and
incorporated into this Item 7.01by reference is the copy of the press release.
The information contained in the press releaseis summary information that is
intended to be considered in the context of AGBA's SEC filings and other
public announcements thatAGBA may make, by press release or otherwise, from
time to time.
The information in this Item 7.01 (including Exhibit99.1) is being furnished
and shall not be deemed to be filed for purposes of Section 18 of the Exchange
Act, or otherwise be subject tothe liabilities of that section, nor shall it
be deemed to be incorporated by reference in any filing under the Securities
Act of 1933,as amended, or the Exchange Act.
IMPORTANT NOTICES
Important Notice Regarding Forward-LookingStatements
This Current Report on Form 8-K contains certain"forward-looking statements"
within the meaning of the Securities Act of 1933 and the Securities Exchange
Act of 1934, bothas amended. Statements that are not historical facts,
including statements about the pending transactions described above, and the
parties'perspectives and expectations, are forward-looking statements. Such
statements include, but are not limited to, statements regarding theproposed
transaction, including the anticipated initial enterprise value and
post-closing equity value, the benefits of the proposed transaction,integration
plans, expected synergies and revenue opportunities, anticipated future
financial and operating performance and results, includingestimates for
growth, the expected management and governance of the combined company, and
the expected timing of the transactions. Thewords "expect," "believe,"
"estimate," "intend," "plan" and similar expressionsindicate forward-looking
statements. These forward-looking statements are not guarantees of future
performance and are subject to variousrisks and uncertainties, assumptions
(including assumptions about general economic, market, industry and
operational factors), known orunknown, which could cause the actual results to
vary materially from those indicated or anticipated.
Such risks and uncertainties include, but arenot limited to: (i) the risk that
the Merger may not be completed in a timely manner or at all, which may
adversely affect the price ofAGBA's securities; (ii) the failure to satisfy
the conditions to the consummation of the Merger, including the approval of
the MergerAgreement by the shareholders of AGBA; (iii) the occurrence of any
event, change or other circumstance that could give rise to the terminationof
the Merger Agreement; (iv) the outcome of any legal proceedings that may be
instituted against any of the parties to the Merger Agreementfollowing the
announcement of the entry into the Merger Agreement and proposed Merger; (v)
the ability of the parties to recognize thebenefits of the Merger Agreement
and the proposed Merger; (vi) the lack of useful financial information for an
accurate estimate of futurecapital expenditures and future revenue; (vii)
statements regarding Triller's industry and market size; (viii) financial
conditionand performance of Triller, including the anticipated benefits, the
implied enterprise value, the expected financial impacts of the Merger,the
financial condition, liquidity, results of operations, the products, the
expected future performance and market opportunities of Triller;(ix) the
impact from future regulatory, judicial, and legislative changes in Triller's
industry; (x) competition from larger technologycompanies that have greater
resources, technology, relationships and/or expertise; and (xi) those factors
discussed in AGBA's filingswith the SEC and those that will be contained in
the definitive proxy statement relating to the Merger. You should carefully
considerthe foregoing factors and the other risks and uncertainties that will
be described in the "Risk Factors" section of the definitiveproxy statement
and other documents to be filed by AGBA from time to time with the SEC. These
filings identify and address other importantrisks and uncertainties that could
cause actual events and results to differ materially from those contained in
the forward-looking statements.Forward-looking statements speak only as of the
date they are made. Readers are cautioned not to put undue reliance on
forward-lookingstatements, and while AGBA and Triller may elect to update
these forward-looking statements at some point in the future, they assume
noobligation to update or revise these forward-looking statements, whether as
a result of new information, future events or otherwise, subjectto applicable
law. Neither AGBA nor Triller gives any assurance that AGBA, or Triller, or
the combined company, will achieve its expectations.
4
Additional Information and Where to FindIt
In connection with the Merger Agreement and theproposed Merger, AGBA intends
to file relevant materials with the SEC, including a proxy statement, which
will be mailed or otherwisedisseminated to the shareholders of AGBA as of the
record date established for voting on the proposed transactions contemplated
by theMerger Agreement. AGBA may also file other relevant documents regarding
the proposed Merger with the SEC. THIS CURRENT REPORT ON FORM8-K DOES NOT
CONTAIN ALL THE INFORMATION THAT SHOULD BE CONSIDERED CONCERNING THE PROPOSED
MERGER AND IS NOT INTENDED TO FORM THE BASISOF ANY INVESTMENT DECISION OR ANY
OTHER DECISION IN RESPECT OF THE MERGER. BEFORE MAKING ANY VOTING OR
INVESTMENT DECISION, INVESTORSAND SECURITY HOLDERS OF AGBA ARE URGED TO READ
THE DEFINITIVE PROXY STATEMENT AND ALL OTHER RELEVANT DOCUMENTS THAT ARE FILED
OR WILLBE FILED WITH THE SEC IN CONNECTION WITH THE PROPOSED MERGER AS THEY
BECOME AVAILABLE, INCLUDING ANY AMENDMENTS OR SUPPLEMENTS TO THESEDOCUMENTS,
CAREFULLY AND IN THEIR ENTIRETY, BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION ABOUT THE PROPOSED MERGER.
Investors and security holders may obtain freecopies of the definitive proxy
statement (if and when available) and other documents that are filed or will
be filed with the SEC by AGBAthrough the website maintained by the SEC at
www.sec.gov. Copies of the documents filed with the SEC by AGBA will be
available free ofcharge at: AGBA Group Holding Limited, AGBA Tower, 68
Johnston Road, Wan Chai, Hong Kong SAR, attention: Mr. Ng Wing Fai, Chief
ExecutiveOfficer.
Participants in Solicitation
AGBA and Triller, and their respective directorsand executive officers, may be
deemed participants in the solicitation of proxies from AGBA's shareholders in
respect of the proposedMerger. AGBA's shareholders and other interested
persons may obtain more detailed information about the names and interests of
thesedirectors and officers in AGBA's proxy statement, when it is filed with
the SEC. Information about AGBA's directors and executiveofficers and their
ownership of AGBA ordinary shares is set forth in AGBA's annual report on Form
10-K, filed with the SEC on March28, 2024. These documents can be obtained
free of charge from the sources specified above and at the SEC's web site at
www.sec.gov.
No Offer or Solicitation
This Current Report on Form 8-K is not a proxystatement or solicitation of a
proxy, consent or authorization with respect to any securities or in respect
of the transactions describedabove and shall not constitute an offer to sell
or a solicitation of an offer to buy the securities of AGBA or the Company,
nor shallthere be any sale of any such securities in any state or jurisdiction
in which such offer, solicitation, or sale would be unlawful priorto
registration or qualification under the securities laws of such state or
jurisdiction. No offering of securities shall be made exceptby means of a
prospectus meeting the requirements of Section 10 of the Securities Act of
1933, as amended, or an exemption therefrom.
Item 9.01. FinancialStatements and Exhibits.
(d)
Exhibits.
Exhibit No. Description
2.1 Amended and Restated Merger Agreement dated August 30, 2024 by, among others, AGBA and Triller
10.1 Form of Super Voting Agreement
99.1 Press Release dated September 3, 2024
104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
5
SIGNATURE
Pursuant to the requirementsof the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereuntoduly authorized.
AGBA GROUP HOLDING LIMITED
By: /s/ Shu Pei Huang, Desmond
Name: Shu Pei Huang, Desmond
Title: Acting Group Chief Financial Officer
Dated: September 3, 2024
6
Exhibit 2.1
EXECUTION COPY 30AUGUST2024
AMENDED AND RESTATED AGREEMENT AND PLAN OFMERGER
by and among
AGBA GROUP HOLDING LIMITED,
AGBA SOCIAL INC.,
TRILLER CORP.
and
HOLDER REPRESENTATIVE
as the HOLDER REPRESENTATIVE
Dated as of August 30, 2024
TABLE OF CONTENTS
Page
Article I THE REORGANIZATION, DOMESTICATION AND MERGER 3
1.1 The Reorganization and the Domestication 3
1.2 The Merger 4
1.3 The Closing 4
1.4 Effective Date and Time 4
1.5 Certificate of Incorporation and Bylaws of the Surviving Corporation 4
1.6 Directors and Officers 5
1.7 Effect of the Merger 5
1.8 Reserved Shares 9
1.9 Corporation RSUs 9
1.10 Closing Deliveries 10
1.11 Tax Withholding 10
1.12 Securities Act Matters 10
Article II REPRESENTATIONS AND WARRANTIES OF THE CORPORATION 12
2.1 Organization and Good Standing; Books and Records 12
2.2 Authority and Enforceability 12
2.3 Capitalization and Stock Rights; Consideration Spreadsheet; Subsidiaries 13
2.4 No Approvals; No Conflicts 15
2.5 Financial Statements; No Undisclosed Liabilities 15
2.6 Absence of Certain Changes or Events 16
2.7 Property 16
2.8 Labor and Employment Matters; Nondisclosure and Non-Competition Agreements 17
2.9 Employee Benefit Plans 19
2.10 Intellectual Property 22
2.11 Contracts 31
2.12 Claims, Legal Proceedings, and Orders 32
2.13 Corporation Permits; Compliance with Laws 33
2.14 Environmental Compliance 34
2.15 Taxes 34
2.16 Tax Consequences 38
2.17 Related Party Interests 38
2.18 Insurance 39
2.19 Brokers or Finders 39
2.20 Bank Accounts 39
2.21 Customers and Suppliers 39
2.22 Full Disclosure 40
Article III REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB 40
3.1 Organization and Good Standing 40
3.2 Authority and Enforceability 40
3.3 Capitalization 41
3.4 Brokers 41
3.5 No Approvals; No Conflicts 41
3.6 Full Disclosure 42
i
Table of Contentscontinued
Page
Article IV COVENANTS 42
4.1 Covenants of the Corporation Prior to the Merger Effective Time 42
4.2 Notices; Actions 44
4.3 Further Action 45
4.4 Confidentiality 45
4.5 Additional Financing 45
4.6 Exclusivity 45
4.7 Tax Matters 46
4.8 Notification of Certain Matters 47
4.9 Access to Information; Interim Period Cooperation 47
4.10 Stockholder Approval Matters 47
4.11 Parent Proxy Statement 47
Article V CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB TO THE CLOSING 49
5.1 Accuracy of Representations and Warranties 49
5.2 Performance of Agreements 49
5.3 Compliance with Laws 49
5.4 Material Adverse Effect 49
5.5 Legal Proceedings 49
5.6 Withdrawal of S-1 Registration Statement 50
5.7 Regulatory and Third Party Approvals 50
5.8 Receipt of Closing Deliveries 50
Article VI CONDITIONS PRECEDENT TO OBLIGATIONS OF THE CORPORATION TO THE CLOSING 51
6.1 Accuracy of Representations and Warranties 51
6.2 Performance of Agreements 51
6.3 Compliance with Laws 51
6.4 Receipt of Closing Deliveries 51
6.5 Regulatory and Third Party Approvals 51
Article VII SURVIVAL; HOLDER REPRESENTATIVE 52
7.1 No Survival of Representations, Warranties, and Covenants 52
Article VIII TERMINATION 52
8.1 Termination 52
8.2 Effect of Termination 53
Article IX GENERAL 53
9.1 Expenses 53
9.2 Notices 54
9.3 Severability 55
9.4 Entire Agreement 55
9.5 Assignment; Parties in Interest 55
9.6 Governing Law; Jurisdiction; Waiver of Jury Trial 55
9.7 Headings; Construction 55
9.8 Counterparts 56
9.9 Remedies 56
9.10 Amendment 57
9.11 Waiver 57
ii
AMENDED AND RESTATED AGREEMENT AND PLAN OFMERGER
This Amended and RestatedAgreement and Plan of Merger (this "
Agreement
") is made and entered into as of August 30, 2024, by and among
AGBA Group Holding Limited
, a British Virgin Islands business company ("
Parent
"),
AGBA Social Inc.
,a Delaware corporation and wholly owned subsidiary of Parent ("
Merger Sub
"),
Triller Corp.
, a Delawarecorporation (the "
Corporation
"), and
Bobby Sarnevesht
, solely in the capacity of the Holder Representative.Capitalized terms used
but not otherwise defined herein shall have the meanings ascribed to such
terms in
Annex A
.
WHEREAS, on April 16, 2024,the parties executed an Agreement and Plan of
Merger (the "
Original Agreement
");
WHEREAS, the parties haveagreed to amend the Original Agreement as further
provided herein;
WHEREAS, the parties haveexecuted this Agreement which amends and restates the
Original Agreement in its entirety;
WHEREAS, the board of directorsof the Corporation has unanimously determined
that this Agreement and the Transactions are fair to, and in the best
interests of, theCorporation and the Stockholders and approved and declared
advisable the execution, delivery, and performance of this Agreement and
theconsummation of the Transactions, subject to the approval of the
Corporation's Stockholders;
WHEREAS, the board of directorsof Parent has unanimously (a) determined that
this Agreement and the Parent Transactions are fair to, and in the best
interests of, Parentand its shareholders, (b) approved and declared advisable
the execution, delivery, and performance of this Agreement and the
consummationof the Parent Transactions, and (c) resolved to recommend that the
Parent's shareholders adopt this Agreement and approve the ParentTransactions;
WHEREAS, the board of directorsand sole stockholder of Merger Sub have
approved and declared advisable the execution, delivery, and performance of
this Agreement andthe consummation of the Parent Transactions;
WHEREAS, on April 18, 2024,Triller Hold Co LLC, a Delaware limited liability ("
Triller LLC"
) and the Corporation have executed documentationrelating to the reorganization
of Triller LLC into the Corporation (the "
Reorganization
") and have, concurrentlywith the execution of this Original Agreement, filed
a certificate of merger relating to the Reorganization in the form of
ExhibitA
hereto (the "
Delaware Reorg Certificate
") with the Secretary of State of the State of Delaware (the"
Delaware Secretary of State
"), pursuant to which the Reorganization was legally effectuated, and as a
resultof which the Corporation became the 100% owner of Triller LLC (such time
of effectiveness is referred to as the "
Reorg EffectiveTime
");
WHEREAS, this Agreement shallbecome effective and legally binding on the
Parties at the time of its execution, subject to the approval of this
Agreement and the Transactionsby the Stockholders (the date hereof sometimes
referred to herein as the "
Agreement Date
");
1
WHEREAS, prior to the MergerEffective Time, Parent will domesticate into the
United States as a Delaware corporation (the "
Domestication
")by filing a Notice of Continuation Out of the Virgin Islands together with
supporting documents with the British Virgin Islands Registrarof Corporate
Affairs (the "
Registrar
") under section 184 of the BVI Companies Act and receiving a Certificateof
Discontinuance from the Registrar in relation to the Domestication pursuant to
section 184 of the BVI Companies Act (the "
Certificateof Discontinuance
"), a Certificate of Domestication under Section 388 of the DGCL in the form
attached hereto as
ExhibitB
(the "
Certificate of Domestication
") along with a Certificate of Incorporation under Section 103 ofthe DCGL in
the form attached hereto as
Exhibit C
(the "
Delaware Parent Certificate of Incorporation
"),upon which Parent shall become a Delaware corporation and shall change its
name to "Triller Inc." or some variation thereofthat includes the "Triller"
name (Parent, after giving effect to the Domestication, is sometimes referred
to herein as "
DelawareParent
");
WHEREAS, at the Merger EffectiveTime, Merger Sub shall be merged with and into
the Corporation (the "
Merger
"), with the Corporation as the survivingcorporation after the Merger
Effective Time as a wholly owned subsidiary of Delaware Parent;
WHEREAS, the Merger will constitutea "change of control" of the Corporation
for purposes of certain Corporation Convertible Notes and Corporation
ConvertibleWarrants, causing them to be converted into Corporation Common
Stock immediately prior to the Merger Effective Time; and the Merger willcause
the Corporation Warrants to be adjusted per the terms thereof and reissued as
Delaware Parent Adjusted Warrants;
WHEREAS, at the Merger EffectiveTime: the holders of Common Stock (including
the current holders of Corporation Convertible Notes and Corporation
Convertible Warrants)shall receive Delaware Parent Common Stock; the holders
of Preferred Stock shall receive Delaware Parent Preferred Stock; the
holdersof Corporation Warrants shall receive Delaware Parent Adjusted
Warrants; and the holders of Corporation RSUs shall receive Delaware
ParentRSUs; all in accordance with the terms of this Agreement;
WHEREAS, Parent intends that,for U.S. federal and applicable state income tax
purposes, the Domestication will qualify as a "reorganization" within
themeaning of Section 368(a) of the Code and the Treasury Regulations
promulgated thereunder (the "
Domestication Intended TaxTreatment
"), and this Agreement is intended to constitute a "plan of reorganization"
within the meaning of Section368 of the Code and Treasury Regulations Sections
1.368-2(g) and 1.368-3(a) for purposes of Sections 354, 361 and 368 of the
Code (a "
Planof Reorganization
") with respect to the Domestication;
WHEREAS, Each of the partieshereto intends that, for U.S. federal and
applicable state income tax purposes, the Merger will qualify as (i) a
"reorganization"within the meaning of Section 368(a) of the Code and the
Treasury Regulations promulgated thereunder, to which each of Parent and
theCompany are to be parties under Section 368(b) of the Code, and this
Agreement is intended to constitute a "Plan of Reorganization"with respect to
the Merger, and (ii) an exchange under Section 351 of the Code ((i) and (ii),
collectively, the "
Merger IntendedTax Treatment
");
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WHEREAS, the parties acknowledgethat, after giving effect to Domestication and
the Merger, the Stockholders and the holders of Corporation RSUs shall receive
an aggregateof 441,620,2090 shares of Delaware Parent Common Stock, Delaware
Parent Preferred Stock, Reserved Shares and/or Delaware Parent RSUs,collectively
, representing in the aggregate 70% of the combined post-Merger Parent
valuation, and the current Parent shareholders shallown an aggregate of
189,265,804 shares of Delaware Parent Common Stock representing 30% of the
post-Merger Parent combined valuation;
WHEREAS, the parties acknowledgethat, prior to the Domestication and the
Merger, Parent shall issue to the majority shareholder of Parent (or an
Affiliate thereof) anaggregate of 37,496 super voting preferred ordinary
shares (the "
Super Voting Shares
"), with each Super VotingShare entitled to 10,000 votes on all matters for
which the holders of Parent Ordinary Shares are entitled to vote; and that, as
of theMerger Effective Time, the current holders of Parent Ordinary Shares and
the holder of the Super Voting Shares collectively shall holdapproximately 65%
of the total voting power of the Delaware Parent stockholders, and at the
Closing, AGBA and Triller will enter intoa voting agreement with respect to
the Super Voting Shares in the form of
Exhibit D
;
WHEREAS, Parent believes thatit is in the interests of all Parties that the
Stockholders, other than the Unrestricted Stockholders to the extent of their
UnrestrictedShares, be subject to the Lock-Up; and the Corporation has agreed
to enforce the Lock-Up from and after the Merger Effective Time as toall
Delaware Parent Common Stock and Delaware Parent Preferred Stock to be issued
to the Stockholders other than the Unrestricted Shares;and
WHEREAS, Parent has agreed(on its behalf and, as of the Domestication, on
behalf of Delaware Parent) to use its best efforts to invest or arrange for an
investmentin the form of equity in the amount of up to $500 million into
Delaware Parent, post-Merger, on terms and conditions to be agreed pursuantto
long form definitive agreements;
NOW, THEREFORE, in considerationof the premises, representations, warranties,
and the mutual agreements and covenants set forth herein, and intending to be
legally bound,Parent, Merger Sub, the Corporation and the Holder Representative
hereby agree as follows:
ArticleI
THE REORGANIZATION, DOMESTICATION AND MERGER
1.1 The Reorganization and the Domestication
(a)
TheReorganization.
At the Reorg Effective Time,Triller LLC has reorganized into the Corporation.
(b)
TheDomestication.
After the Reorg Effective Time, and on the Domestication Date, Parent shall
cause the Domestication to becomeeffective by filing (i) a Notice of
Continuation Out of the British Virgin Islands together with supporting
documents with theRegistrar and the Parent shall have received a Certificate
of Discontinuance, (ii) a Plan of Domestication pursuant to Sections 265and
388 of the DGCL, (iii) the Certificate of Domestication and (iv) the Delaware
Parent Certificate of Incorporation, as to (ii)through (iv), with the Delaware
Secretary of State. As of the effectiveness of the Domestication, the bylaws
in the form of
ExhibitE
hereto (the "
Delaware Parent Bylaws
") shall be the bylaws of Delaware Parent. Delaware Parentshall be named
"Triller Inc." or some variation thereof that includes the "Triller" name, and
its Nasdaqstock ticker will be amended to "ILLR."
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1.2 The Merger
Upon the terms and subjectto the conditions of this Agreement, (a) at the
Merger Effective Time, the separate existence of Merger Sub shall cease and
MergerSub shall be merged with and into the Corporation, with the Corporation
as the surviving corporation after the Merger Effective Time (the"
Surviving Corporation
") and a wholly owned subsidiary of Delaware Parent and (b) from and after the
MergerEffective Time, the Merger shall have all the effects of a merger under
the DGCL and other Applicable Law.
1.3 The Closing
Upon the terms and subjectto the conditions of this Agreement, the closing of
the Merger (the "
Closing
") shall take place at the officesof Loeb & Loeb LLP, 10100 Santa Monica Blvd
#2200, Los Angeles, CA 90067, at 10:00 a.m. local time as soon as practicable
after thesatisfaction or waiver of the conditions set forth in Article V and
Article VI (other than such conditions that, by their terms, are intendedto be
satisfied at the Closing, but subject to the satisfaction or waiver of such
conditions) or at such other time and place as Parentand the Corporation may
mutually agree in writing. The Closing may be effected by electronic means.
The date on which the Closing occursis referred to herein as the "
Closing Date
.
"
1.4 Effective Date and Time
On the Closing Date, uponthe terms and subject to the conditions of this
Agreement, the parties hereto shall cause the certificate attached hereto as
ExhibitF
(the "
Certificate of Merger
") complying with the applicable provisions of the DGCL to be properlyexecuted
and filed with the Delaware Secretary of State. The Merger shall become
effective on the date and at the time of the filing ofthe Certificate of
Merger or at such other date and time as may be specified in the Certificate
of Merger (the "
MergerEffective Time
").
1.5 Certificate of Incorporation and Bylaws of the Surviving Corporation
Unless otherwise specifiedby Parent prior to the Merger Effective Time, at the
Merger Effective Time, by virtue of the Merger, the certificate of
incorporation(the "
Surviving Corporation Certificate of Incorporation
") and bylaws of the Corporation (the "
SurvivingCorporation Bylaws
"), each in the form of
Exhibit G
and
Exhibit H
, respectively, as in effecton the Agreement Date shall be the certificate of
incorporation and Bylaws of the Surviving Corporation. Thereafter, the
Certificate ofIncorporation and Bylaws of the Surviving Corporation may be
amended in accordance with their respective terms and as provided by
ApplicableLaw.
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1.6 Directors and Officers
(a) Immediately prior to theDomestication (as to the Board of Directors of
Parent) and at the Merger Effective Time (as to the Board of Directors of
Delaware Parent),the Board of Directors of each such company shall be as
follows:
Robert E. Diamond, Jr. Chairman of the Board and Director
Ng Wing-Fai - Director
Bobby Sarnevesht - Director (per item (b) below)
Brian Chan - Independent Director
Thomas Ng - Independent Director
Felix Yun Pun Wong - Independent Director
James McCann - Independent Director
(b) Bobby Sarnevesht shallresign his current positions with the Corporation
and its Subsidiaries, effective as of the Merger Effective Time, and shall
serve asInterim CEO and Vice Chair of the Corporation until such time as the
Board, in its sole direction, identifies a suitable replacement.Immediately
upon the Board's appointment of a new CEO of the Corporation, Bobby Sarnevesht
shall cease serving in the role of InterimCEO and shall continue to serve as
Vice Chair of the Corporation. At all times, in his capacity as Interim CEO
and Vice Chair of the Corporation,Bobby Sarnevesht shall report directly to
Robert E. Diamond, Jr.
1.7 Effect of the Merger
1.7.1 Treatment of Equity
At the Merger Effective Time,upon the terms and subject to the conditions of
this Agreement (including, as and to the extent applicable, Section 1.7.2), by
virtueof the Merger and without any action on the part of any party hereto or
the holders thereof:
(a)
All shares of any class of capital stock of the Corporation held by the
Corporation as treasury shares shall be canceled.
(b) TheCorporation Convertible Notes and Corporation Convertible Warrants
shall automatically convert into an aggregate of 54,900,110 and 30,293,447shares
, respectively, of Series A Common Stock.
(c) Each issued andoutstanding share of Series A Common Stock and Series B
Common Stock (including the Common Stock into which Corporation ConvertibleNotes
and Corporation Convertible Warrants are converted pursuant to the
immediately preceding clause (b)), other than DissentingShares, shall be
converted into the right to receive from Delaware Parent the Common Per Share
Merger Consideration; and in theaggregate, the 299,897,852 shares of Common
Stock as of the Agreement Date shall be converted into an aggregate of
299,897,852shares of Delaware Parent Common Stock.
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(d) Eachissued and outstanding share of Preferred Stock, other than Dissenting
Shares, shall be converted into the right to receive from DelawareParent the
Preferred Per Share Merger Consideration; and in the aggregate, the 37,702,230
shares of Preferred Stock as of the AgreementDate shall be converted into an
aggregate of 37,702,230 shares of Delaware Parent Preferred Stock.
(e) EachCorporation RSU shall be canceled and converted into one Delaware
Parent RSU; and in the aggregate, the 54,020,128 Corporation RSUs
outstandingas of the Agreement Date shall be converted into an aggregate of
54,020,128 Delaware Parent RSUs.
(f) Eachoutstanding Corporation Warrant shall become a Delaware Parent
Adjusted Warrant, after all adjustments thereto as required per the termsof
the warrant agreement governing such Corporation Warrant; and in the
aggregate, 128,551,475 Corporation Warrants shall be adjusted,replaced by and
reissued as 55,719,676 Delaware Parent Adjusted Warrants.
(g) Eachissued and outstanding share of capital stock of Merger Sub shall be
converted into one share of common stock of the Surviving Corporation.
(h) AllStockholders other than the Unrestricted Stockholders (as to their
Unrestricted Shares) will be subject to the Lock-Up as to the portionof the
Merger Consideration received by each of them.
(i) Priorto giving effect to the Reserved Shares, at the Merger Effective
Time, each share of Corporation Stock and each Corporation RSU shall,as of the
Merger Effective Time, be converted into one share of Delaware Parent Common
Stock and one Delaware Parent RSU, respectively.All Delaware Parent Common
Stock amounts set forth in this Section 1.7.1 shall be calculated before
giving effect to the Reserved Shares,which shall be placed into escrow
pursuant to Section 1.8.
(j) Priorto the Closing, Parent shall effectuate a 2.0634 to one forward share
split of Parent Ordinary Shares that will result in the holdersof Parent
Ordinary Shares owning an aggregate of 189,265,804 Parent Ordinary Shares
immediately prior to the Merger Effective Time; thisshare split will result in
the 70/30 equity split between the holders of Corporation Stock and of
Corporation RSUs, on the one hand, andthe holders of Parent Ordinary Shares,
on the other hand, which has been agreed by the parties.
1.7.2 Consideration Spreadsheet
Annex B
(the"
Initial Closing Consideration Spreadsheet
") sets forth, as of the Agreement Date, (a) the name of each Stockholder,and
the number of shares of Stock (by class of Stock) held by such Stockholder,
(b) the portion of the Merger Consideration to be paidto each Stockholder, (c)
the name, address and email address (to the extent available) of each holder
of Corporation RSUs, and the numberof Corporation RSUs held by each such
Person, (d) the number of Corporation Warrants, Corporation Convertible
Warrants Schedule and CorporationConvertible Notes, each by the holder(s)
thereof and (e) such other information reasonably requested by Parent.
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If there are any changes required to be made tothe Initial Closing
Consideration Spreadsheet between the Agreement Date and the Merger Effective
Time, the Corporation shall deliverto Parent not less than three Business Days
prior to the Closing Date a revised Initial Closing Consideration Spreadsheet
(the "
FinalClosing Consideration Spreadsheet
"), certified by the Chief Executive Officer of the Corporation, updated with
the Corporation'sgood faith estimates of such information as of the Closing
Date (including without limitation the vesting of any Corporation RSUs
intoStock) and reasonably satisfactory to Parent. The Final Closing
Consideration Spreadsheet shall be prepared on the same basis and usingthe
same methodologies, and in accordance with the same principles, as the Initial
Closing Consideration Spreadsheet, including beingreasonably satisfactory to
Delaware Parent; provided, however, that the Final Closing Consideration
Spreadsheet also shall include suchother information that is reasonably
necessary to effectuate the conversion of Stock and Company RSUs into Delaware
Parent Common Stockand Delaware Parent RSUs and the delivery of Delaware
Parent Stock and Delaware Parent RSUs to the respective recipients thereof, as
soonas possible after the Closing and in an accurate and efficient manner.
1.7.3 Dissenting Shares
Stockholders who have compliedwith all the requirements for perfecting
appraisal or dissenters' rights, as required under the DGCL, shall be entitled
to theirappraisal or dissenters' rights under the DGCL with respect to such
shares ("
Dissenting Shares
"). Notwithstandinganything to the contrary herein, (a) if any holder of
Dissenting Shares shall effectively withdraw or lose (through failure to
perfector otherwise) such holder's appraisal or dissenters' rights, then, as
of the later of the Merger Effective Time and the occurrenceof such event,
such holder's shares shall automatically be converted into and represent only
the right to receive the portion ofthe Merger Consideration to which such
holder is then entitled under this Agreement, without interest thereon and
upon surrender of thecertificate representing such shares in accordance with
this Agreement together with any other documents required under Section
1.7.4and (b) any Dissenting Shares held by a Stockholder who has perfected
such Stockholder's appraisal or dissenters' rights forsuch shares in
accordance with the DGCL shall not be converted into the right to receive any
portion of the Merger Consideration pursuantto Section 1.7.1. The Corporation
shall provide to Delaware Parent (i) prompt notice of any demands for
appraisal or purchase receivedby the Corporation, withdrawals of such demands,
and any other instruments related to such demands served in accordance with
the DGCLand received by the Corporation and (ii) the right to direct all
negotiations and proceedings with respect to such demands under the DGCL.The
Corporation shall not, except with the prior written consent of Delaware
Parent, or as otherwise required under the DGCL, voluntarilymake any payment
or offer to make any payment with respect to, or settle or offer to settle,
any Claim or demand in respect of any DissentingShares. The payment of
consideration under this Agreement to the Stockholders (other than in respect
of Dissenting Shares, which shallbe treated as provided in this Section 1.7.5
and under the DGCL) shall not be affected by the exercise or potential
exercise of appraisalor dissenters' rights under the DGCL by any Stockholder.
1.7.4 Exchange of Certificates and Payment
(a) Prior to the MergerEffective Time, Delaware Parent shall designate
Continental Stock Transfer and Trust Company to act as exchange agent (the"
Exchange Agent
") in the Merger. The Exchange Agent shall be responsible for exchanging
and/or verifyingthe cancellation of share certificates (where share
certificates were issued) representing Stock in exchange for Delaware
ParentCommon Stock or Delaware Parent Preferred Stock, as the case may be
(together referred to as "
Delaware ParentStock
").
7
(b) Ator prior to the Merger Effective Time, Delaware Parent shall deposit, or
cause to be deposited, a copy of the stockholder list of theCorporation with
the Exchange Agent updated to reflect, at the Merger Effective Time, the
issuance of the Merger Consideration receivableby the Stockholders in
accordance with the Final Closing Consideration Spreadsheet. The Merger
Consideration shall be duly issued to theappropriate Stockholders upon the
entry of the names of the Stockholders on the stockholder list of the
Corporation. Prior to the MergerEffective Time, and if requested by the
Exchange Agent, Parent shall send, or shall cause the Exchange Agent to send,
to each Stockholder,a Letter of Transmittal for use in such exchange and/or
verification, in form and substance reasonably satisfactory to Parent and
theCorporation (a "
Letter of Transmittal
") which shall specify that the delivery and/or cancellation of Corporationstock
certificates ("
Corporation Stock Certificates
") in respect of the portion of the Merger Considerationto be issued to each
Stockholder shall be effected, and risk of loss and title shall pass, only
upon proper delivery and/or cancellationof the Corporation Stock Certificates
and other related transmittal documents to the Exchange Agent for use in such
exchange.
(c) Uponsurrender of a Corporation Stock Certificate for cancellation to the
Exchange Agent or to such other agent or agents as may be appointedby Delaware
Parent, together with a duly executed Letter of Transmittal (if required),
which includes a release of certain Claims setforth therein, and such other
documents (including IRS Form W-8 or W-9, as applicable) as may reasonably be
required by Delaware Parentor the Exchange Agent, the holder of such
Corporation Stock Certificate shall be entitled to receive in exchange
therefor the portionof the Merger Consideration that such holder has the right
to receive pursuant to Section 1.7.1, if any, and the Corporation Stock
Certificateso surrendered shall forthwith be canceled. If any Corporation
Stock Certificates shall have been lost, stolen, or destroyed, upon themaking
of an affidavit of such fact by the Stockholder Claiming such certificate to
be lost, stolen, or destroyed, in form reasonablysatisfactory to Delaware
Parent, the Exchange Agent shall pay in exchange for such lost, stolen, or
destroyed Corporation Stock Certificatethe portion of the Merger Consideration
that such Stockholder is entitled to receive pursuant to Section 1.7.1.
Delaware Parent may, inits discretion and as a condition precedent to the
issuance thereof, require such Stockholder to provide Delaware Parent with an
indemnityagreement, in a form reasonably satisfactory to Delaware Parent,
against any Claim that may be made against Delaware Parent with respectto the
Corporation Stock Certificate alleged to have been lost, stolen, or destroyed,
and a surety bond, reasonably satisfactory to DelawareParent, to secure such
indemnity obligation. No interest shall accrue on the Merger Consideration. If
the Merger Consideration (or anyportion thereof) is to be delivered to any
Person other than the Person in whose name the Corporation Stock Certificate(s)
surrenderedin exchange therefor is registered, it shall be a condition to such
delivery that the Person requesting such delivery shall pay to DelawareParent
any transfer or other Taxes required by reason of the payment of the Merger
Consideration (or any portion thereof) to a Personother than the registered
holder of the Corporation Stock Certificate(s) so surrendered, or shall
establish to the satisfaction of DelawareParent that such Tax has been paid or
is not applicable.
8
(d) DelawareParent's delivery of the Merger Consideration to the Exchange
Agent and/or the Surviving Corporation in accordance with and as setforth in
this Section 1.7.4 constitutes Delaware Parent's full performance of its
obligations with respect to the payment of theMerger Consideration to the
Stockholders in connection with the consummation of the Merger. Delaware
Parent's delivery of the applicableportion of the Merger Consideration to the
Exchange Agent and/or the Surviving Corporation in accordance with and as set
forth in thisSection 1.7.4 constitutes Delaware Parent's full performance of
its obligations with respect to the payment of the Merger Considerationto each
Stockholder in connection with the consummation of the Merger.
(e) Notwithstandinganything to the contrary contained herein, no fractional
Delaware Parent Stock will be issued by virtue of the Merger, and each
Personwho would otherwise be entitled to a fraction of a share of Delaware
Parent Stock (after aggregating all fractional shares of DelawareParent Stock
that otherwise would be received by such holder) shall instead have the number
of shares of Delaware Parent Stock issuedto such Person rounded down to the
nearest whole share, without payment in lieu of such fractional shares.
1.7.5 No Further Transfers
After the Merger EffectiveTime, there shall be no transfers of any shares of
Stock on the stock transfer books of the Corporation or the Surviving
Corporation.If, after the Merger Effective Time, certificates formerly
representing shares of Stock are presented to the Surviving Corporation,
suchshares shall be forwarded to the Exchange Agent and shall be canceled and
exchanged in accordance with Section 1.7.4, subject, inthe case of Dissenting
Shares, to Section 1.7.53.
1.8 Reserved Shares
At the Closing, Delaware Parentshall issue an aggregate of fifty million
(50,000,000) shares of Delaware Parent Common Stock constituting a portion of
the Merger Consideration,as a reserve (the "
Reserved Shares
"), which Reserved Shares will be deposited into an escrow account
promptlyafter Closing and used to settle any matters in connection with claims
that relate to the affairs of the Corporation prior to the ClosingDate
(including, without limitation, any current and/or future litigation matters,
Corporation debt, accrued interest, accounts payable,investments in
Corporation Subsidiaries and matters related to the Final Consideration
Closing Spreadsheet, among other), in each instancein the reasonable judgment
of the Board of Directors of Delaware Parent. The number of Reserved Shares
shall be increased from time totime by the number of any Cancelled RSU Shares,
as provided in Section 1.9. For a period of six years after the Closing Date,
DelawareParent may, from time to time, give written instructions to the escrow
agent to release such number of the Reserved Shares in settlementof any such
matters. If any portion of the Reserved Shares remains in escrow at the end of
such six year period, then Delaware Parentshall distribute such shares to the
stockholders of the Corporation existing as of immediately prior to the Merger
Effective Time, ona pro rata basis.
1.9 Corporation RSUs
Each Corporation RSUshall be canceled and converted into one Delaware Parent
RSU(s) as provided in Section 1.7.1(c). The Corporation agrees that theboard
of directors of the Corporation (or, if appropriate, any committee
administering the Corporation RSU Plan) shall adopt suchresolutions or take
such other actions (including obtaining any required consents from the holders
of such Corporation RSUs andproviding notices required under the Corporation
RSU Plan) as may be required to (a) effect the treatment of the Corporation
RSUs asset forth in Section 1.7.1(c) as of the Closing and (b) terminate the
Corporation RSU Plan and each Corporation RSU, as well as allother equity
based incentive plans of the Corporation as of the Closing. The Corporation
RSUs shall become restricted stock units ofDelaware Parent ("
Delaware Parent RSUs
") as of the Closing and Delaware Parent shall, prior to closing,establish and
adopt an incentive plan that covers and governs the Delaware Parent RSUs. Any
Corporation RSUs that have beenconverted into Delaware Parent RSUs and that
have not, as of the end of their respective vesting periods, been vested by
theirterms, shall be cancelled and of no further legal effect. In the event
that any unvested Delaware Parent RSU or portion thereofexisting as of the
Merger Effective Time is cancelled and/or terminated (
i.e,
and does not vest) subsequent to the EffectiveTime due solely to the
termination of a Delaware RSU holder's employment or consulting relationship
by Delaware Parent (andnot by voluntary termination or other action by such
holder), then the number of unvested shares of Delaware Parent Common Stock
socancelled (the "
Cancelled RSU Shares
") shall be added to the number of Reserved Shares, and shall for allpurposes
of this Agreement be deemed to be Reserved Shares as of the date of such
cancellation .
9
1.10 Corporation Warrants
(a) EachCorporation Warrant shall be adjusted into and become an Adjusted AGBA
Delaware Warrant, as provided in Section 1.7.1(e). The terms governingeach
Adjusted AGBA Delaware Warrant shall be as provided in the corresponding
Corporation Warrant.
(b) EachCorporation Convertible Warrant will be converted into Corporation
Stock no later than immediately prior to the Merger Effective Time.
1.11 Corporation Convertible Notes
Each Corporation Convertible Note will be convertedinto Corporation Stock no
later than immediately prior to the Merger Effective Time. The Corporation
has, no later than the AgreementDate, provided an acknowledgment to all
holders of Convertible Notes as to the conversion of each Corporation
Convertible Note held bythem into Corporation Stock.
1.12 Closing Deliveries
At or prior to the Closing,(a) Delaware Parent shall deliver to the
Corporation all certificates, instruments, documents, and other deliverables
set forth this ArticleI and in Article VI and (b) the Corporation shall
deliver to Delaware Parent all certificates, instruments, documents, and other
deliverablesset forth in this Article I and in Article V.
1.13 Tax Withholding
Each of Parent, DelawareParent and Merger Sub and their agents shall be
entitled to deduct and withhold from the Merger Consideration otherwise
payablepursuant to this Agreement such amounts as it is required to deduct and
withhold with respect to the making of such payment underthe Code, or any
provision of state, local or non-U.S. Tax Applicable Law (as reasonably
determined by Parent, Delaware Parent orMerger Sub, respectively). To the
extent that amounts are so withheld by Parent, Delaware Parent or Merger Sub
or their agents, asthe case may be, and paid over to the appropriate
Governmental Body, such withheld amounts shall be treated for all purposes of
thisAgreement as having been paid to the Person in respect of which such
deduction and withholding was made.
10
1.14 Securities Act Matters
(a) Theparties acknowledge that the Delaware Parent Stock to be issued to the
Stockholders in connection with the Merger will not be registeredunder the
Securities Act.
(b) Eachcertificate representing Delaware Parent Common Stock and Delaware
Parent Preferred Stock issued to the Stockholders shall be stampedor otherwise
imprinted with a legend in substantially the following form: "THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE BEENACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THESECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THESE
SECURITIES NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROMPURSUANT TO THE ACT AND
APPLICABLE STATE SECURITIES LAWS. ANY OFFER, SALE, ASSIGNMENT, TRANSFER OR
OTHER DISPOSITION OF THESE SECURITIESIN A TRANSACTION THAT IS NOT REGISTERED
UNDER THE ACT IS SUBJECT TO THE CORPORATION'S RIGHT TO REQUIRE DELIVERY OF AN
OPINION OFCOUNSEL TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN
COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS."
(c) Eachcertificate representing Delaware Parent Common Stock, other than
certificates representing Unrestricted Shares, shall be stamped or
otherwiseimprinted with a legend in substantially the following form: "THE
SECURITIES REPRESENTED BY THIS CERTIFICATE AND ANY INTEREST THEREINMAY NOT BE
DIRECTLY OR INDIRECTLY SOLD, OFFERED FOR SALE, ASSIGNED, PLEDGED,
HYPOTHECATED, OR OTHERWISE TRANSFERRED OR DISPOSED OF PRIORTO [THE DATE WHICH
IS 165 DAYS AFTER THE CLOSING DATE], EXCEPT AS PROVIDED IN THAT CERTAIN
AMENDED AND RESTATED AGREEMENT AND PLAN OFMERGER DATED AUGUST 30, 2024 AMONG
THE COMPANY AND TRILLER, CORP., AND CERTAIN OTHER PARTIES, A COPY OF WHICH
AGREEMENT IS ON FILE ATTHE OFFICE OF THE COMPANY. A COPY OF SUCH AGREEMENT MAY
BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY. ANY PURPORTED TRANSFER IN
VIOLATIONOF THAT AGREEMENT SHALL BE VOID."
(d) Each certificaterepresenting Delaware Parent Preferred Stock shall be
stamped or otherwise imprinted with a legend in substantially the
followingform: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND ANY
INTEREST THEREIN MAY NOT BE DIRECTLY OR INDIRECTLY SOLD, OFFEREDFOR SALE,
ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED OR DISPOSED OF PRIOR
TO [*], 2025
1
,EXCEPT AS PROVIDED IN THAT CERTAIN AMENDED AND RESTATED AGREEMENT AND PLAN OF
MERGER DATED AUGUST 30, 2024 AMONG THE COMPANY ANDTRILLER, CORP., AND CERTAIN
OTHER PARTIES, AND EXCEPT AS PROVIDED IN THAT CERTAIN LETTER AGREEMENT BETWEEN
CASTLE LION INVESTMENTSLIMITED, COPIES OF WHICH AGREEMENTS ARE ON FILE AT THE
OFFICE OF THE COMPANY. A COPY OF EACH SUCH AGREEMENT MAY BE OBTAINED BY
THEHOLDER OF THIS CERTIFICATE UPON WRITTEN REQUEST TO THE COMPANY. ANY
PURPORTED TRANSFER IN VIOLATION OF THE FOREGOING AGREEMENTSSHALL BE VOID."
1 One year after Closing
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ArticleII
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
Except as disclosed in theTriller LLC 2024 S-1, the Parent August 2024 Draft
14A or in the corresponding schedules of the disclosure memorandum delivered
by theCorporation to Parent prior to the execution of this Agreement (the "
Corporation Disclosure Memorandum
"), inorder to induce Parent and Merger Sub to enter into and perform this
Agreement, the Corporation represents and warrants to Parent andMerger Sub, as
to the Corporation (and, for all periods prior to the Reorg Effective Time,
except where the context requires otherwise,also as to Triller LLC), except as
otherwise provided, as follows:
2.1 Organization and Good Standing; Books and Records
The Corporation is a corporationduly organized, validly existing, and in good
standing under the laws of the State of Delaware, and the Corporation has all
requisitepower and authority to own, operate, and lease its properties and
assets and to carry on its business as now conducted and as currentlyproposed
to be conducted. The Corporation is duly qualified to do business and is in
good standing in each of the jurisdictions in whichit conducts its business,
which are the only jurisdictions in which such qualification is necessary. The
Corporation has furnished toParent accurate and complete copies of the
Corporation's (i) governing documents, (ii) minute books, and (iii) stock
ledger andstock or unit transfer records. Such books and records accurately
reflect all meetings of the members or stockholders, as the case maybe, and
the boards of directors (including any committees thereof) of the Corporation
and all actions taken by written consent of theStockholders, as well as their
boards of directors (including any committees thereof), as applicable, since
the inception of the Corporationthrough the Agreement Date; the minutes
contained therein accurately reflect the events of and actions taken at such
meetings; and suchstock ledger and stock transfer records accurately reflect
all issuances, transfers, and cancellations of shares of capital stock of
theCorporation.
2.2 Authority and Enforceability
(a)
Authority.
The Corporation has full power and authority to execute this Agreement and the
other Operative Documents to which it is (or will be)a party and to perform
its obligations hereunder and thereunder. The board of directors of the
Corporation, at a meeting duly calledand held, or by written consent in lieu
thereof, has unanimously (i) determined that this Agreement and the
Transactions are fairto, and in the best interests of, the Corporation and its
Stockholders, (ii) approved and declared advisable the execution,delivery, and
performance of this Agreement and the consummation of the Transactions, and
(iii) resolved to recommend that theStockholders adopt this Agreement and
approve the Transactions. This Agreement and the Transactions shall, after the
ParentShareholder Meeting, be duly authorized, adopted and approved by the
requisite vote or written consent of the Stockholders incompliance with the
Corporation Certificate of Incorporation, the Corporation Bylaws and the DGCL,
and the form of notice to beprovided to the other Stockholders, collectively,
the "
Stockholder Approval
"). All actions relating to thesolicitation and obtainment of the Stockholder
Approval with respect to this Agreement will be taken in compliance with
ApplicableLaw. Pursuant to Section 4.10, the Corporation will provide all
legally required notices to all its Stockholders that have not votedfor or
provided written consent to the Merger and all other Transactions to which the
Corporation is a party, pursuant to Section228(e) of the DGCL; such notices to
be delivered to all Stockholders promptly after the Stockholder Approval has
been obtained. TheCorporation has full power and authority to consummate the
Transactions to which it is a party.
12
(b)
Enforceability.
This Agreement has been duly executed and delivered by the Corporation and,
assuming the due authorization, execution, and delivery byeach of the other
parties hereto, this Agreement is the valid and binding obligation of the
Corporation, enforceable against it in accordancewith its terms, and each of
the other Operative Documents to which it is (or will be) a party, when
executed by the Corporation, and assumingthe due authorization, execution, and
delivery by each of the other parties thereto, is (or will be) the valid and
binding obligationof the Corporation, enforceable against it in accordance
with its terms, in each case, except to the extent such enforceability is
subjectto the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium, or other Applicable Law affecting or relating to creditors'rights
generally and general principles of equity. the Corporation. Except for any
regulatory consents, no third party consents are requiredfor the Corporation
to consummate the Transactions.
2.3 Capitalization and Stock Rights; Consideration Spreadsheet; Subsidiaries
(a) The Corporation asof the Reorganization
(i) Thecapitalization of the Corporation as of the Agreement Date is as follows:
(A)
SeriesA Common Stock:
850,000,000 shares authorized, 207,556,771 shares issued (excluding the shares
of Common Stock issuable upon the conversionof the Corporation Convertible
Notes and including 30,293,447 shares of Series B Common Stock that will be
converted from CorporationConvertible Warrants into Series B Common Stock
immediately prior to the Merger Effective Time).
(B)
SeriesB Common Stock:
50,000,000 shares authorized, 68,556,829 shares issued; including 38,263,382
shares of Series B Common Stock thatwill be converted from Corporation
Convertible Warrants into Series B Common Stock by immediately prior to the
Merger.
13
(C)
PreferredStock:
100,000,000 shares authorized, of which 50,000,000 have been designated as
Series A-1 Preferred Stock and of which 37,702,230shares are issued.
(D)
AllStock:
337,600,081 shares issued.
(E)
CorporationRSU Plan:
54,020,128 shares of Series A Common Stock reserved for issuance upon the
vesting of Corporation RSUs.
(F)
CorporationWarrants:
Warrants to purchase an aggregate of 55,719,676 shares of Corporation Stock.
(G)
CorporationConvertible Notes:
Corporation Convertible Notes in the aggregate principal amount of
$96,798,078.46, all of which shall convert ata conversion price equal to the
volume weighted average price per share of Parent Common Stock for the 30 days
prior to the date of executionhereof $2.1377 into an aggregate of 54,077,698
shares of Delaware Parent Common Stock at the Closing.
The Delaware Reorg Certificateand all other filings required to be made in
Delaware in connection with the Reorganization have been filed with the
Delaware Secretaryof State. As of the Agreement Date, the Stock is held of
record and beneficially by the Stockholders as set forth on the Initial
ClosingConsideration Spreadsheet, free and clear of any Encumbrances (except
with respect to the Reserved Shares). As of the Agreement Date,each share of
Stock is authorized and validly issued and is fully paid and non-assessable,
and issued in compliance with Applicable Law.As of the Agreement Date, except
as set forth on the Initial Closing Consideration Spreadsheet , there are no
other outstanding sharesof capital stock of, or other equity or voting
interests in, the Corporation, and no outstanding securities of the
Corporation convertibleinto or exchangeable for shares of capital stock of, or
other equity or voting interests in, the Corporation, and, except for the
CorporationRSUs, the Corporation Warrants, the Corporation Convertible
Warrants and the Corporation Convertible Notes, there are no outstanding
options,warrants, rights, convertible debt instruments or other commitments or
agreements to acquire from the Corporation, or that obligate theCorporation to
issue, any capital stock of, or other equity or voting interests in, or any
securities convertible into or exchangeablefor shares of capital stock of, or
other equity or voting interests in, the Corporation. Except as otherwise
amended in the Final ClosingConsideration Spreadsheet, as of the Closing Date,
the ownership of all Stock, Corporation Warrants, Corporation Convertible
Warrants,Corporation Convertible Notes and Corporation RSUs shall be as set
forth in the Initial Closing Consideration Spreadsheet. As of the
AgreementDate, except for the Corporation RSUs, the Corporation Warrants, the
Corporation Convertible Warrants and the Corporation ConvertibleNotes, there
shall be no options, warrants, restricted stock, stock appreciation rights,
phantom stock rights, convertible debt instrumentsor any other rights with
respect to the equity the Corporation. Neither Triller LLC nor the Corporation
has ever declared or paid anydividends on any shares of Stock or other equity,
and there is no Liability for dividends accrued and unpaid by the Corporation
or TrillerLLC.
(ii) The Initial ClosingConsideration Spreadsheet is accurate and complete in
all respects. The Final Closing Consideration Spreadsheet, when delivered,will
be accurate and complete in all respects, and upon payment of the amounts set
forth therein, no Parent Entity or any of theirrespective Representatives will
have any obligation to any Stockholder, or to any holder of Corporation
Warrants, CorporationConvertible Warrants, Corporation Convertible notes or
Corporation RSUs with respect to any Stock or to any equity or convertibleequity
interests in Triller LLC.
14
(iii) Exhibit 21.1 ofthe Triller LLC 2024 S-1 sets forth a complete list of
the Corporation's Subsidiaries as of the Agreement Date. The Corporationis not
under any current or prospective obligation to form or participate in, provide
funds to, make any loan, capital contribution orother investment in, or assume
any liability or obligation of, any Person.
2.4 No Approvals; No Conflicts
The execution, delivery, andperformance by the Corporation of this Agreement
and the other Operative Documents to which the Corporation is (or will be) a
party andthe consummation by the Corporation of the Transactions do not and
will not (a) violate (with or without the giving of notice orlapse of time, or
both) Applicable Law, (b) require any consent, approval, or authorization of,
declaration, filing, or registrationwith, or notice to, any Person, other than
(i) the Stockholder Approval and (ii) the filing of the Certificate of Merger,
(c) resultin a default (with or without the giving of notice or lapse of time,
or both) under, or acceleration or termination of, or the creationin any
Person of the right to accelerate, terminate, modify, or cancel, any
Encumbrance, Contract, obligation, or Liability to which theCorporation is a
party or by which it is bound or to which any its assets is subject, (d)
result in the creation of any Encumbranceon any assets of the Corporation, (e)
conflict with or result in a breach of or constitute a default under any
provision of the governingdocuments of the Corporation, (f) invalidate or
adversely affect any Corporation Permit, or (g) impair the right of the
Corporation(or any Parent Entity after the Closing) to Exploit any Corporation
IP.
2.5 Financial Statements; No Undisclosed Liabilities
(a) The Triller LLC 2024S-1 sets forth (i) the audited balance sheets and
statements of operations, cash flows, and equity of Triller LLC at and forthe
two fiscal years ended December 31, 2022 and 2021 and accompanying notes (the "
Annual FinancialStatements
"). The Parent August 2024 Draft 14A sets forth (x) the audited balance sheets
and statements of operations,cash flows, and equity of Triller LLC for the
fiscal year ended December 31, 2023 and accompanying notes (together with the
AnnualFinancial Statements, the "
Audited Financial Statements
") and (y) an unaudited balance sheet, statement ofoperations and statements
of cash flows of Triller LLC at and for the three month period ended March 31,
2024 (the"
Interim Financial Statements
" and collectively with the Audited Financial Statements, the"
Financial Statements
"). The Financial Statements (i) are accurate, complete, and consistent with
thebooks and records of Triller LLC and the Corporation, (ii) have been
prepared in conformity with GAAP on a basis consistentwith prior accounting
periods, and (iii) fairly present the financial position, results of
operations, and changes in financialposition of Triller LLC as of the dates
and for the periods indicated, subject, in the case of the Interim Financial
Statements,solely to normal recurring period end adjustments. The unaudited
balance sheet of Triller LLC as of March 31, 2024 (the"
Corporation Balance Sheet Date
") is herein referred to as the "
Corporation BalanceSheet
." The Company has no Liabilities that are not fully reflected or reserved
against, as prescribed by GAAP, in theCorporation Balance Sheet, except
Liabilities incurred since the Corporation Balance Sheet Date in the ordinary
course of businessand consistent with past practice. The Corporation is not a
guarantor, indemnitor, surety, or other obligor of any indebtedness ofany
other Person. The Corporation has delivered to Parent accurate and complete
copies of all management letters and othercorrespondence received from
accountants of the Corporation relating to the Corporation's financial
statements, accountingcontrols, and all related matters. There has been no
incidence of Fraud that involves any current or former Corporation
ServiceProviders.
15
(b) TheCorporation maintains a system of internal accounting controls
sufficient to provide reasonable assurances that: (i) transactions areexecuted
in accordance with management's general or specific authorization, (ii)
transactions are recorded as necessary to permitpreparation of financial
statements in conformity with applicable GAAP and to maintain accountability
for assets, (iii) access to assetsis permitted only in accordance with
management's general or specific authorization, (iv) the recorded
accountability for assetsis compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences, and
(v)the obligations of the Corporation are satisfied in a timely manner and as
required under the terms of each Contract to which the Corporationis a party
or by which the Corporation is bound. To the Knowledge of the Corporation, the
Corporation has no unremedied significant deficienciesor material weaknesses
(as such terms are defined under GAAP) in the design or operation of internal
control over financial reporting.
2.6 Absence of Certain Changes or Events
(a)
Financial.
Exceptfor transactions specifically contemplated in this Agreement or as set
forth in the Triller LLC 2024 S-1, the Parent August 2024 Draft14A and/or in
Schedule 2.6(b), since the Corporation Balance Sheet Date: (a) the business of
the Company has been conducted onlyin, and the Corporation has taken no action
except in, the ordinary course of business and consistent with past practice
and (b) therehas not occurred any Material Adverse Effect. Since the
Corporation Balance Sheet Date, the Corporation has not experienced any
businessdisruption, or taken any actions outside of the ordinary course of
business and consistent with past practice.
(b)
Bring Down.
Schedule2.6(b) of the Corporation Disclosure Memorandum sets forth all
material updates and changes to (i) the Corporation's business andoperations,
and (ii) the representations and warranties of the Corporation set forth in
this Article II, that have occurred since January29, 2024.
2.7 Property
(a) TheCorporation does not own and has never owned any real property.
(b) The Corporation hasprovided to Parent all lease agreements (the "
Leases
") with respect to all real property leased orcurrently being used by the
Corporation (the "
Real Property
"). All Leases are valid, binding, andenforceable in accordance with their
terms and are in full force and effect. Except as provided in Schedule 2.12(a)
of theCorporation Disclosure Memorandum, the Corporation has performed all
material obligations imposed on it under the Leases, andneither the
Corporation nor any other party thereto is in default thereunder, nor is there
any event that with notice or lapse oftime, or both, would constitute a
default by the Corporation, or, to the Knowledge of the Corporation, any other
party thereto, thatwould result in a Material Adverse Effect. There is not,
and within the past 12 months there has not been, any material disagreementor
dispute with any other party to any of the Leases, nor is there any pending
request for amendment of any of the Leases, except asprovided in Schedule
2.12(a) of the Corporation Disclosure Memorandum. The Corporation has not
received any notification that anyparty to any of the Leases intends to
cancel, terminate, materially modify, refuse to perform, or refuse to renew
any of the Leases.There is no Encumbrance applicable to the Real Property that
could reasonably be expected to materially impair the use or theoccupancy of
the Real Property other than Permitted Encumbrances. The Corporation has
provided to Parent accurate and completecopies of all Leases.
16
(c) Allof the material assets and properties of the Corporation are in good
condition and repair subject to normal wear and tear, in sufficientworking
order and have been properly maintained to a material extent. Each asset
included in the Financial Statements or material assetacquired by the
Corporation since the Corporation Balance Sheet Date, and each material asset
used by the Corporation or that is in thereputed ownership of the Corporation,
is: (i) legally and beneficially owned solely by the Corporation free from all
Encumbrances otherthan Permitted Encumbrances and (ii) where capable of
possession, in the possession or under the control of the Corporation.
2.8 Labor and Employment Matters; Nondisclosure and Non-Competition Agreements
(a) TheCorporation keeps accurate and up to date records of: (i) the names,
titles, national, and local jurisdictions of service to theCorporation, work
authorization status in such jurisdictions, classification for purposes of all
applicable wage-and-hours laws, part-or full-time status, permanent or
temporary status, leave status, accrued paid time off, and current base and
variable compensation amountsor rates (whether salaried or otherwise) of all
directors, officers, and employees (full-time and part-time, whether permanent
or temporary)of the Corporation and (ii) the names, titles, national, and
local jurisdictions of service to the Corporation, permanent or temporarystatus,
current compensation packages, and descriptions of services to the
Corporation of all consultants and independent contractorsof the Corporation.
(b) TheCorporation is not party to any labor, collective bargaining, or
similar agreement, and there are currently no organizational campaigns,petitions
, or other unionization activities seeking recognition of a collective
bargaining unit that could affect the Corporation. Noemployees of the
Corporation are, or in the past three years have been, represented by any
labor organization, or other collective Representativeentity, union, or
organization. None of the Transactions could reasonably be expected to require
approval or consent by any works council,labor collective group, or other
similar third-party entity. There is no labor dispute pending or, to the
Knowledge of the Corporation,threatened against or affecting the Corporation,
and the Corporation has not experienced any work stoppage since its inception.
To theKnowledge of the Corporation, no employee, contractor, or consultant of
the Corporation intends to terminate his or her employment orrelationship with
the Corporation. All individuals who have provided or are providing services
of any kind to the Corporation are correctlyclassified as either being an
employee or an independent contractor, and if classified as an employee are
correctly classified as beingexempt or non-exempt from overtime under
Applicable Law.
17
(c) Sincethe inception of the Corporation, the Corporation has been in
compliance with Applicable Law respecting employment, including hiring,terminati
on, discrimination, harassment, retaliation, accommodation, terms and
conditions of employment, wages, hours, and occupationalsafety and health, and
has not engaged in any unfair labor practice. Since the inception of the
Corporation, the Corporation has withheldall amounts required by Applicable
Law or by Contract to be withheld from the wages, salaries, and other payments
to its employees, includingcommon law employees, and is not liable for any
arrears of wages (including commissions, bonuses, or other compensation) or
any Taxesor any penalty for failure to comply with any of the foregoing (or,
if any arrears, penalty or interest was assessed against the Corporationregardin
g the foregoing, it has been fully satisfied). The Corporation is not liable
for any payment to any trust or other fund, or toany Governmental Body with
respect to unemployment compensation benefits, workers' compensation benefits,
social security, socialbenefits, or other benefits or obligations for
employees (other than routine payments to be made in the ordinary course of
business andconsistent with past practice). There are no pending Claims
against the Corporation under any workers compensation plan or policy or
forlong-term Disability. There are no controversies pending or threatened
between the Corporation, on the one hand, and any current or formerCorporation
Service Providers, or any other Person, arising out of the Corporation's
status as employer or purported employer, oras an entity that engages
contractors or consultants, on the other hand, that have resulted, or could
reasonably be expected to result,in a Claim before any Governmental Body,
including Claims for compensation, wage and hour violations, severance
benefits, vacation time,vacation pay or pension benefits, discrimination,
harassment, retaliation, failure to accommodate, wrongful discharge, or
otherwise. Sincethe inception of the Corporation, the Corporation has obtained
from all its former employees whose employment was involuntarily terminatedgener
al releases of all Claims (whether actual or potential, known or unknown)
against the Corporation, and all releases of employmentClaims in favor of the
Corporation obtained from former employees since the inception of the
Corporation are effective and binding torelease all employment Claims from
such employees and comply in all respects with Applicable Law.
(d) Nocurrent or former Corporation Service Provider is or has been in
violation of any provision or covenant of any Contract with any Personby
virtue of such Corporation Service Provider's being employed by, performing
services for, or serving on the board of directorsof, the Corporation. All
provisions and covenants of Contracts with the Corporation or with any other
Person in respect of which the Corporationmay have rights or liability to
which any current or former Corporation Service Provider is subject comply in
all respects with ApplicableLaw.
(e) Sincethe inception of the Corporation, there have been no plant closings,
mass layoffs or other terminations of employees that would createany
obligations upon or liabilities for the Corporation under the Worker
Adjustment and Retraining Notification Act of 1988, as amended(the "
WARN Act
"), or similar laws. The Corporation has no plans to undertake any action that
would trigger theWARN Act or any applicable mini-WARN Act.
(f) Except for seniorofficers of the Corporation or as separately provided by
the Corporation to Parent, all employees of the Corporation are employed onan
"at will" basis and are lawfully employed in the United States. All current
and former employees of the Corporation,are or were during their employment
with the Corporation authorized to work in the United States in accordance
with all applicableLaws, including but not limited to the Immigration and
Naturalization Act, as amended, and the regulations promulgated thereunder.The
Corporation has not received any complaint or other allegation regarding any
current or former employee being unauthorized towork for the Corporation in
the United States. No allegations of immigration-related unfair employment
practices have been madeagainst the Corporation, or to the Knowledge of the
Corporation, threatened to be filed with the Equal Employment OpportunityCommiss
ion or the Special Counsel for Immigration-Related Unfair Employment
Practices, or any other Governmental Body. TheCorporation has completed and
retained in accordance with all applicable Laws and regulations a Form I-9 for
all employees workingin the United States for the Corporation.
18
(g) (i)No allegations of sexual harassment, sexual assault, or misconduct in
the course of being employed by, or providing services to, the Corporationhave
been made against (A) any Corporation senior management employee, or any
current or former officer or director of the Corporation,or (B) any other
Corporation Service Provider who, directly or indirectly, supervises any other
Corporation Service Provider and (ii)the Corporation has not made any payment
arising out of, or entered into any settlement agreement or conducted any
investigation relatedto, allegations of sexual harassment, sexual assault or
misconduct by or regarding any Corporation Service Provider or other
Representativeof the Corporation. To the extent allegations of sexual
harassment, sexual assault, or misconduct have been made, the Corporation
haspromptly, thoroughly and impartially investigated all such allegations and,
where it was determined that such allegation had potentialmerit, the
Corporation has taken prompt and appropriate action.
(h) TheCorporation has made available to Parent accurate and complete copies
of each of the following: (i) all forms of employment agreementsand offer
letters pursuant to which any employees of the Corporation currently provide
services to the Corporation, (ii) all forms ofseverance and change-in-control
agreements of the Corporation currently in effect and binding upon the
Corporation, (iii) all forms ofservice agreements and agreements with current
consultants, contractors, and/or advisory board members of the Corporation,
(iv) all formsof Corporation IP Protection Agreements between current and
former Corporation Service Providers and the Corporation at any time sinceits
inception, and an accurate and complete list of any current or former
Corporation Service Providers, and/or other Persons not subjectthereto, (v)
the most current management organization chart(s) of the Corporation, (vi) all
forms of bonus or variable-compensation plansof the Corporation and all forms
of award agreements thereunder, and (vii) a schedule of currently outstanding
bonus, variable-compensation,severance, and change-in-control commitments of
the Corporation. The Corporation has provided to Parent a complete and
accurate list ofall the Corporation's employment agreements, offer letters,
severance or change-in-control agreements, service agreements with
non-employeeservice providers, and bonus or compensation agreements, in each
case, that are currently in effect and differing in any material respectfrom
the standard forms of such agreements included in the Triller 2024 S-4.
2.9 Employee Benefit Plans
(a) Prior to the Closing,the Corporation will provide to Parent a list of all
Employee Benefit Plans that the Corporation nor any Subsidiary or
ERISAAffiliate sponsors, maintains, or contributes to any. The Corporation has
no agreement, commitment, or obligation to create, enterinto or contribute to
any other plan, program, policy, practice, Contract, or fund that would be an
Employee Benefit Plan, or tomodify or amend any existing Employee Benefit Plan
(other than as contemplated under this Agreement). The terms of each
EmployeeBenefit Plan permit the Corporation to amend and terminate such
Employee Benefit Plan at any time and for any reason withoutLiability (other
than routine administrative costs in the ordinary course of business and
consistent with past practice).
19
(b) TheCorporation has made available to Parent a current, accurate, and
complete copy of each material Employee Benefit Plan (or, to the extentsuch
plan is unwritten, an accurate description, including all material terms
thereof), and, to the extent applicable: (i) any contractualobligations
relating to any Employee Benefit Plan, including all trust agreements,
insurance or annuity contracts, investment managementagreements, record
keeping agreements, and other documents or instruments related thereto, (ii)
the most recent IRS determination letter,opinion letter, or advisory letter,
(iii) the most recent summary plan description and any summary of material
modifications, and anyother written communications (or a description of any
oral communications) by the Corporation or any Corporation Subsidiary to the
Corporation'sor Subsidiary's employees concerning the extent of the benefits
provided under any material Employee Benefit Plan, (iv) for thetwo most recent
years, (A) the Form 5500 and attached schedules, (B) reviewed financial
statements, (C) actuarial valuation reports, and(D) non-discrimination testing
results and other compliance testing results, and (v) all material written
correspondence relating to anyaudit, investigation, or correction associated
with any Employee Benefit Plan. Each Employee Benefit Plan intended to be
qualified underSection 401(a) of the Code has either obtained from the IRS a
favorable determination letter as to its qualified status under the Codeor has
been established under a standardized prototype plan for which an IRS opinion
letter has been obtained by the plan sponsor andis valid as to the adopting
employer, and nothing has occurred, either by reason of any action or failure
to act, since the issuance ofsuch determination letter or opinion letter that
could reasonably be expected to cause the loss of the tax-qualified status of
such EmployeeBenefit Plan.
(c) Exceptas would not have a Material Adverse Effect, all individuals who,
pursuant to the terms of any Employee Benefit Plan, are entitled toparticipate
in any Employee Benefit Plan, are currently participating in such Employee
Benefit Plan or have been offered an opportunityto do so and have declined in
writing.
(d) Except as would not,individually or in the aggregate, have a Material
Adverse Effect, with respect to each Employee Benefit Plan: (i) such
EmployeeBenefit Plan is, and was, properly and legally established, and at all
times has been, maintained, operated, administered, andfunded in all respects
in accordance with its terms and in compliance with Applicable Law, (ii) the
Corporation and each otherPerson (including each fiduciary) have, at all
times, properly performed all their duties and obligations (whether arising
byoperation of law, by contract, or otherwise) under or with respect to such
Employee Benefit Plan, including all reporting,disclosure, and notification
obligations, and (iii) all returns, reports, notices, statements, summary plan
descriptions, and otherdisclosures relating to such Employee Benefit Plan
required to be filed with any Governmental Body or distributed to any
participanttherein have been properly prepared and duly filed or distributed
in a timely manner. The Corporation has not incurred, and thereexists no
condition or set of circumstances in connection with which the Corporation,
any ERISA Affiliate, or Parent could incur,directly or indirectly, any
Liability (except for routine contributions and benefit payments) under ERISA,
the Code, or any otherApplicable Law, or pursuant to any indemnification or
similar agreement with respect to such Employee Benefit Plan, except wheresuch
Liability would not, individually or in the aggregate have a Material Adverse
Effect.
20
(e) Neitherthe Corporation nor any Subsidiary or ERISA Affiliate sponsors,
maintains, or contributes to, or has ever sponsored, maintained, or
contributedto (or been obligated to sponsor, maintain, or contribute to), (i)
a "multiemployer plan," as defined in Section 3(37)or Section 4001(a)(3) of
ERISA, (ii) a multiple employer plan within the meaning of Section 4063 or
Section 4064 ofERISA or Section 413 of the Code, (iii) an employee benefit
plan that is subject to Section 302 of ERISA, Title IVof ERISA, or Section 412
of the Code, or (iv) a "multiple employer welfare arrangement," as defined in
Section 3(40)of ERISA. No Employee Benefit Plan is a "defined benefit pension
plan," as defined in Section 3(35) of ERISA.
(f) Neitherthe Corporation, its Subsidiaries nor any Employee Benefit Plan
provides or has any obligation to provide (or contribute toward the costof)
post-employment or post-termination welfare benefits of any kind, including
death and medical benefits, with respect to any currentor former Corporation
Service Provider, other than continuation coverage mandated by Sections 601
through 608 of ERISA and Section 4980Bof the Code or other Applicable Law and
at the sole cost of the individual (or their beneficiaries).
(g) Neitherthe execution and delivery of this Agreement or any of the other
Operative Documents nor the consummation of the Transactions (eitheralone or
upon the occurrence of any additional or subsequent event(s)) will (i) entitle
any individual to severance pay, unemploymentcompensation, or any other
material compensation or benefit, (ii) result in any benefit or right becoming
established or increased,or accelerate the time of payment or vesting of any
benefit, under any Employee Benefit Plan (other than as required by Applicable
Law),(iii) require the Corporation, Parent, or any of their respective
Affiliates to transfer or set aside any assets to fund or otherwiseprovide for
any benefits for any individual, (iv) impair any of the rights of the
Corporation, or any of its Affiliates with respect toany Employee Benefit
Plan, (v) result in any loss of deduction for any reason, including pursuant
to Section 280G of the Code, or (vi)result in the forgiveness in whole or in
part of any outstanding loans made by the Corporation to any Person. None of
the Corporation,any of its Subsidiaries, Parent or any Affiliate of Parent
will be obligated to pay or reimburse any Person for any Taxes imposed
underSection 4999 of the Code (or any corresponding or similar provision of
Applicable Law with respect to Taxes) as a result of any Contractcurrently in
effect.
(h) Exceptas would not have a Material Adverse Effect, neither the Corporation
nor any Corporation Subsidiary has received services from any individual(i)
whom the Corporation or its Subsidiary treated as an independent contractor,
but who should have been treated as a common law employeeof the Corporation or
Subsidiary or (ii) who constituted a leased employee of the Corporation or its
Subsidiary under Section 414(n)of the Code.
(i) Neither theCorporation nor any of its Subsidiaries sponsors, maintains, or
contributes to, or has ever sponsored, maintained, or contributed to(or been
obligated to sponsor, maintain, or contribute to), any Employee Benefit Plan
that is mandated by a Governmental Body otherthan a Governmental Body of the
United States or is subject to the laws of any jurisdiction outside of the
United States.
21
(j) TheCorporation, each Corporation Subsidiary and each Employee Benefit Plan
that is a group health plan is in compliance in all material respectswith the
Patient Protection and Affordable Care Act and the Health Care and Education
Reconciliation Act of 2010, in each case as amended(collectively, the "
2010 Health Care Law
"). The operation of each Employee Benefit Plan that is a group healthplan has
not resulted in, and could not reasonably be expected to result in, the
incurrence of any penalty or excise tax to the Corporationor any of its
Subsidiaries pursuant to the 2010 Health Care Law. The Corporation and each of
its Subsidiaries have offered all full-timeemployees (as defined in the 2010
Health Care Law) the ability to elect minimum essential coverage that provides
minimum value for themselvesand their dependents, such that there will not be
any Liability or excise tax assessed against the Corporation or any of its
Subsidiariesunder Section 4980H of the Code. The Corporation and its
Subsidiaries have not reimbursed any employee in the United States for
healthinsurance premiums, other than for a group health plan sponsored by the
Corporation or one of its Subsidiaries. There are no facts orcircumstances
that could reasonably be expected to create a reporting obligation or excise
tax for the Corporation or any of its Subsidiariesunder Section 4980D of the
Code.
(k) Allequity-based compensation or incentive plans of the Corporation
(including, without limitation, the Triller Third Amended and Restated2021
Equity Incentive Plan and 2020 Equity Incentive Plan), other than the
Corporation RSU Plan, have been properly and legally terminatedas of the
Agreement Date. All Corporation RSUs were validly issued and properly approved
by the board of directors of the Corporation.Except for the Corporation RSUs
set forth on the Initial Closing Consideration Spreadsheet, there is no
outstanding equity-based compensationor incentive Contract of any kind
relating to any securities of the Corporation or the Corporation as of the
Agreement Date, nor shallany such Contract exist as of the Closing Date.
(l) Noneof the Corporation, its Subsidiaries or the Corporation has any
Liability with respect to paying any bonus or other cash incentive ofany type
to any individual except as set forth in the Triller2024 S-1 (Registration No.
333-273623) filed with the SEC on January 29,2024 and Schedule 2.9(l) of the
Corporation Disclosure Memorandum.
(m) AllTaxes that are required by Applicable Law to be withheld from benefits
derived under any Employee Benefit Plan have been properly withheldand
remitted to the proper Tax Authority or depository in a timely manner.
2.10 Intellectual Property
2.10.1 Intellectual Property Generally
(a) The Corporation (i)exclusively owns and has independently developed or
acquired or (ii) has the valid right or license to Exploit, all Corporation
IP.The Corporation IP is sufficient for the conduct of the Corporation's
business as currently conducted and as currentlyproposed to be conducted. To
the Knowledge of the Corporation, all Corporation Intellectual Property Rights
are valid, subsisting,and enforceable. The Corporation has the sole and
exclusive right to bring a Claim or suit against any third party'sinfringement
of the Corporation Intellectual Property Rights and to retain for itself any
damages recovered in any such action.
22
(b) TheCorporation owns and has good and exclusive right, title, and interest
in and to each item of Corporation-Owned IP and each of the CorporationIP
Registrations, free and clear of all Encumbrances and licenses other than the
Outbound Licenses. The right, license, and interest ofthe Corporation in and
to all Third-Party IP are free and clear of all Encumbrances (other than
restrictions contained in the applicablewritten license agreements with such
third parties and Outbound Licenses).
(c) Otherthan the Corporation IP Agreements, there are no Contracts governing
or relating to any Corporation IP. The Corporation has provided toParent
accurate and complete copies of all Corporation IP Agreements.
(d) TheCorporation has not, directly or indirectly, (i) transferred ownership
of, or granted any exclusive license in relation to, any CorporationIP to, any
Person, (ii) permitted any Person to offer the Corporation IP or Corporation
Products as a service or to resell, market, reproduce,distribute, or
sublicense the Corporation IP or Corporation Products, or (iii) permitted the
rights of the Corporation in any CorporationIP to lapse or enter the public
domain.
2.10.2 Intellectual Property Registrations
All registrations,filings, and applications made by, on behalf of, or in the
name of the Corporation (or under obligation of assignment to theCorporation)
in any jurisdiction for any patents, copyrights, mask works, trademarks,
service marks, domain names, and any otherCorporation Intellectual Property
Right (collectively, "
Corporation IP Registrations
") are set forth on inthe Triller LLC 2024 S-1 and/or the Parent August 2024
Draft 14A. The Corporation will, upon request of Parent, provide Parent
withthe jurisdictions in which such Corporation IP Registration has been
issued, or applications have been filed, the name of the owner,the application
or registration number, the filing date, the date of registration, and the
expiration date of such Corporation IPRegistration. The Corporation has made
available to Parent complete and accurate copies of all applications that are
not publiclyavailable related to each item included in the Corporation IP
Registrations. All of the Corporation IP Registrations are valid,enforceable,
and subsisting. There is no information, and there are no materials, facts, or
circumstances, including any informationor fact that would constitute prior
art, that would render any of the Corporation IP Registrations invalid or
unenforceable, orwould materially affect any pending application for any
Corporation IP Registrations. There are no actions that must be taken by
theCorporation or Parent within 180 days after the Agreement Date for the
purpose of obtaining, maintaining, perfecting,preserving, or renewing any
Corporation IP Registration. All necessary registration, maintenance, and
renewal fees due in connectionwith the Corporation IP Registrations have been
made and all necessary documents, recordations, and certificates in connection
withthe Corporation IP Registrations have been filed with the relevant patent,
copyright, trademark, or other authorities for thepurposes of prosecuting,
perfecting, and maintaining the Corporation IP Registrations. The Corporation
has not misrepresented, orfailed to disclose, any facts or circumstances in
any application for any Corporation IP Registrations that would constitute
Fraudor a misrepresentation with respect to such application, or that would
otherwise affect the validity or enforceability of anyCorporation IP
Registration. The Corporation has not engaged in any action or any omission,
conducted its business, or used orenforced or failed to use or enforce the
Corporation IP, in a manner that would result in the abandonment,
cancellation, orunenforceability of any Corporation Intellectual Property
Right or Corporation IP Registration, and the Corporation has not taken(and
not failed to take) any action that would result in the forfeiture or
relinquishment of any Corporation Intellectual PropertyRight or Corporation IP
Registration. The Corporation will, upon request of Parent, make available a
list of all trademarks, tradenames, service marks, logos, domain names, design
rights, and other identifiers currently used or proposed to be used by
theCorporation but for which no registration has been sought, as well as any
other material, unregistered Corporation IP. There havebeen no interferences,
re-examinations, or oppositions brought or threatened to be brought involving
any of the Corporation IP, norto the Knowledge of the Corporation, is there
any basis for any such interference, re-examination, or opposition.
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2.10.3 Third Party Intellectual Property & IP Assignment
Other than the Third-PartyIP, (a) no third-party intellectual property is used
in, held for use in, or necessary for the conduct of the business of the
Corporationas currently conducted or as proposed to be conducted and (b) no
third-party intellectual property is used in, held for use in, or necessaryfor
the development or continued development of the Corporation Products as such
development is currently conducted or proposed to beconducted by or on behalf
of the Corporation. Neither the Corporation nor any of its Affiliates has (x)
assigned or transferred any CorporationIP to any Person (including any
customer or potential customer), including pursuant to any Contract, purchase
order, "work madefor hire," or other arrangement, or (y) customized any
Corporation Product for any Person in a manner that would limit or impairthe
Corporation's exclusive ownership of the Corporation-Owned IP.
2.10.4 Payments
Except as set forth in theInbound Licenses, no royalties, commissions, fees,
or other payments are or will become payable by the Corporation to any Person
by reasonof the Exploitation of any Corporation IP in the conduct of the
Corporation's business as currently conducted and as currently proposedto be
conducted.
2.10.5 No Infringement
(a) To the Knowledge ofthe Corporation, the operation of the business of the
Corporation as it has been conducted since the Corporation's formation,as
currently conducted, and as currently proposed to be conducted, including the
Exploitation of the Corporation IP and CorporationProducts, and the design,
development, use, branding, advertising, promotion, marketing, sale,
distribution, and licensing out ofany Corporation Product (i) have not, do
not, and will not conflict with, infringe, violate, interfere with, or
misappropriateany right (including any proprietary or intellectual property
right), title, or interest of any Person, (ii) with respect to theproprietary
or intellectual property rights of any Person that exist or have been applied
for as of the Closing Date, will notinfringe any such right when such
operation, design, development, use, branding, advertising, promotion,
marketing, sale,distribution, or licensing out is conducted in substantially
the same manner by the Corporation following the Closing, and(iii) have not,
do not, and will not constitute unfair competition or unfair trade practices
under Applicable Law. There is nopending or threatened Claim that any of the
Corporation-Owned IP is invalid or contesting the ownership or right of the
Corporationto Exploit any of the Corporation-Owned IP, nor to the Knowledge of
the Corporation, is there any basis for any such Claim. To theKnowledge of the
Corporation, there is no pending or threatened Claim that any of the
Third-Party IP is invalid or contesting theownership of the Third-Party IP or
the right of the Corporation to Exploit any of the Third-Party IP, nor is
there any basis for anysuch Claim. Neither the Corporation nor any Stockholder
has received any notice or Claim (whether written or oral) regarding anyoffer
to license or any infringement, misappropriation, violation, misuse, abuse, or
other interference of or with any third-partyproprietary or intellectual
property right by the Corporation, the Corporation IP, or any Corporation
Products, or claiming that anyother Person has any such Claim with respect
thereto, nor to the Knowledge of the Corporation, is there any basis for any
suchClaim. Neither the Corporation nor any Stockholder has received any
opinion of counsel relating to infringement, invalidity, orunenforceability of
any Corporation IP or any Corporation Products. No Corporation Product,
Corporation Technology, or CorporationIntellectual Property Right is subject
to any proceeding or outstanding decree, order, judgment, agreement, or
stipulation thatrestricts in any manner the use, provision, transfer,
assignment, or licensing thereof by the Corporation or may affect thevalidity,
registrability, use, or enforceability of such Corporation Product,
Corporation Technology, or Corporation IntellectualProperty Right.
24
(b) Tothe Knowledge of the Corporation, there is and has been no unauthorized
use, unauthorized disclosure, infringement, violation, or misappropriationof
any Corporation-Owned IP by any Person. Neither the Corporation nor any
Stockholder has received any notice (whether written or oral)that any Person
is infringing, violating, or misappropriating any Corporation IP or otherwise
making any unauthorized use or disclosureof any Corporation IP. To the
Knowledge of the Corporation, no such infringement, violation, misappropriation,
use, or disclosure is occurringor has occurred.
(c) AllTechnology incorporated into or embodied in any Corporation-Owned IP or
Corporation Products was developed solely by either (i) employeesof the
Corporation acting within the scope of their employment or (ii) by
contractors, consultants, or other third parties who have validlyand
irrevocably assigned all of their rights, including all intellectual property
rights and proprietary rights therein, to the Corporation.To the extent any
such Technology relates to Corporation IP Registrations, to the maximum extent
provided for by, and in accordance with,Applicable Law, the Corporation has
recorded each such assignment with the relevant Governmental Body.
2.10.6 Confidentiality; Source Code
The Corporation (a) hastaken all necessary and appropriate steps to maintain
the confidentiality of its trade secrets and confidential and proprietaryinforma
tion and data and of all trade secrets and confidential and proprietary
information and data of any third party that hasprovided any confidential
information to the Corporation, (b) has not disclosed trade secrets or
confidential orproprietary information and data to any Person other than a
Corporation Service Provider and under a written nondisclosureagreement, and
(c) has not deposited, disclosed, or delivered to any Person, or agreed to or
permitted the deposit, disclosure,or delivery to any Person of, any Source
Code. No event has occurred, and no circumstances or conditions exist, that
(with orwithout notice, lapse of time or both) will, or could reasonably be
expected to, result in the disclosure or delivery to any Personof any Source
Code. No Person has, or shall have any right to lease, license, purchase, or
otherwise obtain any Source Code orTechnology incorporated into or embodied in
any Corporation-Owned IP or Corporation Products.
25
2.10.7 Agreements with Employees and Contractors
Each current or former CorporationService Provider and any other Person who
has been involved in, or who contributed to, the creation or development of
any Corporation-OwnedIP (each such Corporation Service Provider or Person, a "
Contributor
"), has executed and delivered to the Corporationa valid and enforceable (a)
assignment of all rights, title, and interests that such Person may have, may
have had or may hereafter acquirein or to such Corporation-Owned IP and a
valid and enforceable waiver of any and all rights (including moral rights)
that such Personmay have therein and (b) nondisclosure, invention,
non-competition, non-solicitation, and non-hire agreement (clauses (a) and (b)
collectively,the "
Corporation IP Protection Agreements
"), and the Corporation has provided accurate and complete copies ofall fully
executed Corporation IP Protection Agreements to Parent. Each material
Corporation IP Protection Agreement is on the Corporation'sstandard form,
which has been provided to Parent. No Contributor has claimed or alleged that
any Corporation IP Protection Agreement betweenthe Contributor and the
Corporation is invalid or unenforceable and the Corporation has no reason to
believe any such Claim or allegationwill be forthcoming. No Contributor owns
or has any right, including any right to assert any moral rights, to any of
the Corporation Productsor Corporation IP, nor has any Contributor made to the
Corporation or threatened any assertions with respect to any alleged
ownership,interest, or rights with respect to any of the Corporation Products
or Corporation IP. To the Knowledge of the Corporation, no Contributoris, or
has been at any time during employment with or any period of service to the
Corporation, subject to any contract with any otherPerson which requires or
has required such Contributor to assign, license, or grant any right, title,
or interest in or to any CorporationIP to any Person other than the
Corporation. No Contributor (i) has any right, license, Claim, moral right, or
interest whatsoeverin or with respect to any of the Corporation-Owned IP, (ii)
is in violation of any provision or covenant of any Contract with anyPerson by
virtue of such Contributor's being employed by, performing services for, or
serving on the board of directors of, theCorporation, or (iii) has excluded
any intellectual property or other proprietary right that is related to the
Corporation IP from theassignment provisions of any Corporation IP Protection
Agreement.
2.10.8 Open Source
The Corporation will,upon Parent's request, make available a list of all Open
Source Materials (including release number, if any) included in orintegrated
with (including as a programming dependency) the Corporation Technology and
the Corporation Products, including indevelopment or testing thereof, and (a)
the Open Source License (including version number, if any) pursuant to which
the Corporationuses such Open Source Materials, (b) the location on the
Internet, if any, where such Open Source Materials were most recentlyaccessed
by the Corporation, (c) whether such Open Source Materials have been modified
by or for the Corporation (including adescription of such modifications, if
any), (d) whether such Open Source Materials have been distributed by or for
the Corporation,and (e) whether such Open Source Material is Copyleft
Material, and if so, how such Copyleft Materials are integrated with
orinteract with the Corporation IP. The Corporation has not: (i) used any Open
Source Materials to develop any Corporation IP orCorporation Product, (ii)
incorporated any Open Source Materials into, or combined any Open Source
Materials with, any CorporationIP or Corporation Product, or (iii) distributed
any Open Source Materials in conjunction with or for use with any
CorporationTechnology or Corporation Product. The Corporation has not used any
Copyleft Materials or Open Source Materials in a manner thatrequires, will
require, or would reasonably be expected to require: (x) any of the
Corporation IP or Corporation Product, or anyportion thereof, to be subject to
any Copyleft License; (y) license or other provision of any Corporation
Product or Corporation IPon a royalty-free basis; or (z) grant of any patent
license, non-assertion covenant, or other rights to modify, make derivativeworks
based on, decompile, disassemble, or reverse engineer any Corporation Product
or Corporation Technology. The Corporation is incompliance with the terms of
all relevant licenses (including all requirements related to notices and
making source code availableto third parties) for all Open Source Materials
used by the Corporation, including all copyright notice and attributionrequireme
nts, and all requirements to provide or offer access to source code.
26
2.10.9 Warranty against Defects
The Corporation IP is freefrom material defects and bugs, and substantially
conforms to the applicable specifications, documentation, and samples
therefor. TheSoftware included in the Corporation IP does not and shall not
contain (a) any clock, timer, counter, or other limiting or disabling
code,design, routine, or any viruses, Trojan horses, or other disabling or
disruptive codes or commands that would cause such Software to beerased, made
inoperable, or otherwise rendered incapable of performing in accordance with
its performance specifications and descriptionsor otherwise limit or restrict
the Corporation's or any Person's ability to use such Software or the
Corporation IP, includingafter a specific or random number of years or copies
or (b) any back doors or other undocumented access mechanism allowing
unauthorizedaccess to, and viewing, manipulation, modification, or other
changes to, such Software or Corporation IP.
2.10.10 Effect of Transaction on Corporation IP Agreements
(a) Theconsummation of the Transactions will neither violate nor result in the
breach, modification, cancellation, termination, or suspensionof, or
acceleration of any payments with respect to, any Corporation IP Agreement.
Following the Closing, the Surviving Corporation willhave the right to
exercise all of its rights under all Corporation IP Agreements, to the same
extent the Corporation would have been ableto had the Transactions not
occurred and without being required to pay any additional amounts or
consideration other than fees, royalties,or payments that the Corporation
would otherwise be required to pay had the Transactions not occurred.
(b) Neither this Agreementnor the Transactions will result in (i) any third
party being granted rights or access to, or the placement in or release
fromescrow of, Source Code, (ii) the granting by Parent or any of its
Affiliates to any third party any Corporation IntellectualProperty Right or
any other proprietary right, (iii) Parent or any of its Affiliates being bound
by, or subject to, anynon-competition, non-assertion of its rights,
most-favored nation provisions, or other restriction on the operation or scope
of itsbusiness, or (iv) Parent or any of its Affiliates being obligated to pay
any royalties or other amounts to any third party in excessof those payable by
the Corporation prior to the Closing. Following the Closing, all Corporation-Own
ed IP will be fullytransferable, alienable, or licensable by Parent without
restriction and without payment of any kind to any third party.
27
2.10.11 Privacy and Security
(a) TheCorporation complies with, and has at all times complied with, (i) Data
Protection Laws (ii) any applicable privacy choices, includingopt-in or
opt-out preferences and rights' requests, of natural Persons relating to the
Processing of Personal Information, (iii)any Corporation Privacy Commitments,
and (iv) any Corporation Data Agreement. The Corporation has provided adequate
notice, obtained validconsents, offered sufficient opt-outs, maintained
accurate records of the communications preferences of its users and other
natural Personswhose Personal Information is Processed by or on behalf of the
Corporation, and taken all other actions necessary for the Processing
ofPersonal Information to the extent required under Data Protection Law.
Neither the execution, delivery, and performance of this Agreementnor the
consummation of the Transactions will cause, constitute, or result in a breach
or violation of any Data Protection Law, CorporationPrivacy Commitments,
Corporation Data Agreements or standard terms of service entered into by users
of any Corporation Products. The Corporationis in compliance with all
applicable public-facing privacy notices regarding the Processing of Personal
Information, has the right totransfer any Personal Information as part of this
Agreement. The Corporation maintains lawful and adequate technical,
contractual, andorganizational measures to comply with Data Protection Laws
regulating the transfer Personal Information across country borders.
(b) EachContract between the Corporation and any Person that Processes
Personal Information for or on behalf of the Corporation as a service
provideror processor to Corporation (a "
Third-Party Processor
") requires each Third Party Processor to take commerciallyreasonable steps to
protect Personal Information in accordance with Corporation's information
security program and applicable DataProtection Laws.
(c) TheCorporation has implemented, maintains, and is in compliance with a
comprehensive written information security program that (a) complieswith Data
Protection Law, and (b) includes administrative, technical, and physical
controls that are appropriate to safeguard the confidentiality,integrity, and
availability of Personal Information in its custody or control against
unauthorized access or other Security Breach.
(d) The Corporation is incompliance with all Applicable Laws with respect to
the Processing of Personal Information from a natural Person considered a
childunder applicable Data Protection Law (a "
Child
"), including, to the extent applicable, theChildren's Online Privacy
Protection Act. With respect to Personal Information or other data Processed
by the Corporation froma Child that (i) identifies a Child or (ii) can be used
in combination with other information in the Corporation's possessionor
reasonably available to the Corporation to identify a Child, the Corporation
has either obtained appropriate prior verifiableparental consent for the
Processing of that data, or has deleted such data, in each case in compliance
with applicable DataProtection Law. To the extent applicable, the Corporation
has complied with requests from parents or guardians of each Child withrespect
to the Processing of Personal Information provided by that Child to the
Corporation.
28
(e) TheCorporation has implemented and maintains appropriate technical,
physical, and organizational measures, security systems, and technologiesin
compliance with applicable reasonable data security requirements under Data
Protection Law and Corporation Privacy Commitments andthat are designed to
protect computers, networks, software, and systems used by the Corporation
from loss, theft, unauthorized access,use, disclosure, or modification. To the
best of Corporation's Knowledge, no Security Breaches have materially impacted
the Corporationor resulted in material Liability to the Corporation.
(f) TheCorporation has not received, and there is no circumstance that would
reasonably be expected to give rise to, any Claim, written notice,communication,
warrant, regulatory opinion, audit result, or allegation from a Governmental
Body or any other Person: (i) alleging orconfirming non-compliance with a
relevant requirement of Data Protection Law, Corporation Privacy Commitments,
or a Corporation Data Agreement,(ii) requiring or requesting the Corporation
to amend, rectify, cease Processing, de-combine, permanently anonymize, block,
or deleteany Personal Information, (iii) initiating, announcing, permitting or
mandating investigations, audits, the requisition of informationfrom, or the
entering of the premises of, the Corporation by Governmental Bodies, or (iv)
claiming compensation from the Corporation withrespect to the Processing of
Personal Information. The Corporation has not been involved in any Claims
involving a breach or alleged breachof Data Protection Law or Corporation
Privacy Commitments.
2.10.12 Government Rights
No government funding, facilitiesof a university, college, or other
educational institution or research center was used in the development of any
Corporation-Owned IP.No Contributor, who was involved in, or who contributed
to, the creation or development of any Corporation-Owned IP, has performed
servicesfor any government, university, college, or other educational
institution or research center during a period of time during which
suchContributor was also performing services for the Corporation. No
government entity has any license or rights, including any rights ofassignment
or grant-back, to any Corporation Product or Corporation Technology.
2.10.13 Participation in Standards Organizations
The Corporation is not andhas never been a member of, a contributor to, or
affiliated with, any industry standards or open source organization, body,
working group,project, or similar organization (a "
Standards Organization
"), and neither the Corporation, nor any Corporation-OwnedIP, is subject to
any licensing, assignment, contribution, disclosure, or other requirements or
restrictions of any Standards Organization.The Corporation has provided Parent
with accurate and complete copies of all governing documents and other
Contracts (including charter,Bylaws, and participation guidelines) relating to
the Corporation's membership in, contribution to, or affiliation with, any
StandardsOrganization.
29
2.10.14 Warranties; Corporation Products
(a) Therehave been no product liability Claims asserted against the
Corporation relating to the Corporation, or any Corporation Products or
servicesrelated thereto, or, to the Knowledge of the Corporation, threatened
against the Corporation relating to any Corporation Products. TheCorporation
does not have any liability, or written notice of any Claim alleging potential
liability, arising out of any injury to individualsor property related to any
Corporation Product.
(b) TheCorporation has obtained, complied with, and has maintained at all
times all certifications in connection with the conduct and operationof the
business of the Corporation, including the operation of Corporation Products
and their manufacture, sale, and distribution, andhas provided Parent with
accurate and complete copies of all documents relating to such certifications.
The Corporation has not receivedany notice or other communication from any
Governmental Bodies (i) contesting the uses of or the labeling and promotion
of any of theCorporation Products and (ii) otherwise alleging any violation of
any Applicable Law by the Corporation with respect to any CorporationProducts,
including any Claim relating to product safety issues. There have been no
adverse regulatory actions taken or threatened byany Governmental Bodies with
respect to any of the Corporation Products and the Corporation has not, either
voluntarily or at the requestof any Governmental Body, initiated a recall or
provided post-sale warnings regarding any Corporation Product. The Corporation
has obtained,complied with, and has maintained at all times all certifications
in connection with the conduct and operation of the business of theCorporation,
including the operation of Corporation Products and their manufacture, sale,
and distribution, and has provided Parent withaccurate and complete copies of
all documents relating to such certifications. All filings with and
submissions to any Governmental Bodiesmade by the Corporation with respect to
the Corporation Products, whether oral, written, or electronically delivered,
were true, accurate,and complete as of the date made, and, to the extent
required to be updated, as so updated remain true, accurate, and complete, and
donot misstate any of the statements or information included therein, or omit
to state a fact necessary to make the statements therein notmisleading.
(c) TheCorporation is in actual possession of and has exclusive control over a
complete and correct copy of the source code for all proprietarycomponents of
the Corporation Products, including all previous major releases and all other
material proprietary Software of the Corporation.The Corporation has not
disclosed, delivered, licensed, or otherwise made available, and does not have
a duty or obligation (whether present,contingent, or otherwise) to disclose,
deliver, license, or otherwise make available, any material portion of the
source code for anyCorporation Product to any escrow agent or any other
Person, other than an employee, independent contractor, or consultant of the
Corporationpursuant to a valid and enforceable Corporation IP Protection
Agreement prohibiting use or disclosure except in the performance of
servicesfor the Corporation. There has been no unauthorized theft, reverse
engineering, decompiling, disassembling, or other unauthorized disclosureof or
access to any source code for any Corporation Product.
30
2.10.15 Information Technology
(a) Thearrangements relating to the Corporation's information and
communications technology infrastructure and systems (including software,hardwar
e, firmware, networks, and the Corporation's websites) and any security and
disaster recovery arrangements relating theretothat are or have been used in
the conduct of the Corporation's business (collectively, the "
ICT Infrastructure
")will not be adversely affected by the Transactions, and the ICT
Infrastructure will continue to be available for use by the Corporationimmediate
ly following the consummation of the Transactions and thereafter on
substantially the same terms and conditions as prevailedimmediately before the
Closing, without further action or payment by Parent. The ICT Infrastructure
is (i) in good working order and functionsin accordance with all applicable
documentation and specifications, (ii) maintained and supported in accordance
with industry practiceand is covered by sufficient maintenance and warranty
provisions to remedy, or provide compensation for, any material defect, and
(iii)protected by security and disaster recovery arrangements, including
taking and storing back-up copies (both on- and off-site) of the softwareand
any data in the ICT Infrastructure and following procedures for preventing the
introduction of viruses to, and unauthorized accessof, the ICT Infrastructure.
All ICT Infrastructure used by the Corporation is owned by or licensed or
leased to the Corporation. Detailsof all licenses and leases relating to the
ICT Infrastructure that are or have been used by the Corporation will be
provided to Parentupon request, along with accurate and complete copies of all
such licenses and leases.
(b) TheCorporation does not have any security vulnerabilities, and has not
experienced, and no circumstances exist that are likely or expectedto give
rise to, any disruption or material deterioration in or to the operation of
the Corporation's business as a result of (i)any substandard performance or
defect in any part of the ICT Infrastructure whether caused by any viruses,
bugs, worms, software timebombs, Trojan horses or other harmful, malicious, or
destructive code, lack of capacity, or otherwise or (ii) a Security Breach in
relationto any part of the ICT Infrastructure. To the Knowledge of the
Corporation, the ICT Infrastructure does not have any material securityvulnerabi
lities.
2.11 Contracts
(a) Schedule2.11 to the Corporation Disclosure Memorandum contains an accurate
and complete list of the following Contracts to which the Company isa party or
by which the Company is bound as of the Agreement Date and which are not
otherwise disclosed in and/or filed as an Exhibitto the Triller LLC 2024 S-1
or the Parent August 2024 Draft 14A (each, a "
Material Contract
"):
(i)
each Contract that relates to any of the "Listing-related Transactions" and
referred to on pages (ii) through (iv)of the Triller LLC 2024 S-1, and each
Contract providing for any payment to a financial advisor in connection with
the initial publicoffering contemplated by the Triller LLC 2024 S-1;
(ii)
each Contract entered into after January 29, 2024 that would have been
required to be filed as an Exhibit to the Triller LLC 2024S-1 if an amendment
thereto was filed with the SEC on the date hereof, including those Contracts
listed in the Triller LLC 2024 S-1 ExhibitIndex as to be filed in a future
amendment;
31
(iii)
each material Contract relating to or in connection with the Reorganization;
(iv)
each Contract relating to or establishing a material joint venture,
partnership, or limited liability company or that involvesa sharing of
material profits or revenue with any other Person, or that provides for the
payment of material referral fees or bounties;
(v)
each Contract (including for these purposes any executed letter of intent,
memorandum of agreement or understanding, term sheetor similar document) for
the acquisition by the Corporation of any business or any corporation,
partnership, joint venture, limited liabilitycompany, association, or other
business organization or division thereof (including letters of intent and any
such Contracts under whichthe Corporation has ongoing indemnification
obligations); and
(vi) each Contract forthe disposition of any significant portion of the assets
or business of the Corporation.
(b) AllContracts to which the Corporation is a party or by which the
Corporation is bound are valid, binding, and enforceable in accordance
withtheir terms and are in full force and effect. The Corporation has
performed all obligations imposed on it under such Contracts, and neitherthe
Corporation nor, to the Knowledge of the Corporation, any other party thereto,
is in default thereunder, nor is there any event thatwith notice or lapse of
time, or both, would constitute a default by the Corporation or, to the
Knowledge of the Corporation, any otherparty thereunder. There is not, and
since the inception of the Corporation there has not been, any material
disagreement or dispute withany other party to any Material Contract, nor is
there, to the Knowledge of the Corporation, any pending request for amendment
of anyMaterial Contract. Neither the Corporation nor any Stockholder has
received any notification that any party to a Material Contract intendsto
cancel, terminate, materially modify, refuse to perform, or refuse to renew
such Contract (if such Contract is renewable). The Corporationhas provided to
Parent accurate and complete copies of all Material Contracts (that are not
otherwise described or reflected in the TrillerLLC 2024 S-1 or the Parent
August 2024 Draft 14A) at least three Business Days prior to the Agreement
Date.
2.12 Claims, Legal Proceedings, and Orders
(a) Except as set forth inthe Triller LLC 2024 S-1, the Parent August 2024
Draft 14A or as set forth in Schedule 2.12(a) to the Corporation DisclosureMemor
andum, there are no, and since the inception of the Corporation there have
been no, Legal Proceedings or Claims pending orinvolving or, to the Knowledge
of the Corporation, threatened against the Corporation, or any Affiliate of
the Corporation, orRepresentative thereof related, directly or indirectly, to
the Corporation, involving an amount equal to or more than $600,000 and,to the
Knowledge of the Corporation, there is not any reasonable basis for any such
Claim. No Legal Proceeding is pending or, to theKnowledge of the Corporation,
threatened by or against the Corporation or any Person for whose, and
referable to whose, acts ordefaults the Corporation may be vicariously liable.
Schedule 2.12(a) sets forth a description of all material litigation
(includingthe matters listed in the Triller LLC 2024 S-1, the Parent August
2024 Draft 14A and any other significant litigations), with anupdate, expected
timeline and assessment of legal/financial exposure. No portion of the
Corporation's business is currentlyoperating under or subject to any Order. No
petition under the federal bankruptcy or other similar Applicable Law or any
state orforeign insolvency or other similar Applicable Law has been filed by
or against the Corporation. The Corporation has provided a fulllist and
description of all current Corporation Legal Proceedings prior to the date
hereof (other than
de minimis
mattersinvolving less than $50,000); and, to the best knowledge of the
Corporation, there are no such other Legal Proceedings that have notbeen
disclosed to Parent.
32
(b)No current or former Corporation Service Provider, in each case during the
course of or arising out of such Person's employmentor service with the
Corporation, has been the subject of a criminal proceeding or has been found
by any Governmental Body to have violatedany Applicable Law (excluding minor
traffic violations), (ii) to the Knowledge of the Corporation, no petition
under the federal bankruptcyor other similar Applicable Law or any state or
foreign insolvency or other similar Applicable Law has been filed by or
against, or areceiver or similar officer appointed for, any director or
officer of the Corporation, and (iii) to the Knowledge of the Corporation,no
current Corporation Service Provider is the subject of any Order, or has
entered into any agreement with any Governmental Body, permanentlyor
temporarily enjoining him or her, or otherwise limiting him or her, from
engaging in any business, profession, or business practice.
2.13 Corporation Permits; Compliance with Laws
(a) TheCorporation has received all approvals, authorizations, consents,
licenses, orders, registrations, and permits of all Governmental Bodiesnecessary
for the conduct of the Corporation's business (collectively, "
Corporation Permits
"). The Corporationis, and at all times has been, in material compliance with
all Corporation Permits and in compliance with all Applicable Law.
(b)The Corporation has not been subject to any investigation or review by any
Governmental Body.
(c) TheCorporation is, and at all times has been, in compliance with
Applicable Law of the United States and other jurisdictions in which
theCorporation operates or to which it is subject with respect to import and
export control and economic sanctions, including the U.S. ExportAdministration
Regulations, the U.S. International Traffic in Arms Regulations, and the U.S.
Department of the Treasury Office of ForeignAsset Control ("
OFAC
") economic sanctions regulations. The Corporation has not at any time been
counterpartyto any commercial agreement with any Person who is the target of,
or listed as a designated person in respect of, any economic sanctionadministere
d by OFAC or the U.S. Department of Commerce or has engaged, directly or
indirectly, in any business with or related to anycountry or territory that is
the subject of any comprehensive economic or financial sanctions or trade
embargoes administered or enforcedby OFAC (currently Crimea, Cuba, Iran,
Sudan, Syria, and North Korea).
(d) Neither theCorporation nor any of its Representatives acting on its behalf
has at any time (i) taken any action, directly or indirectly, inviolation (or
that would reasonably be expected to result in any violation) of Anti-Bribery
Laws, including corruptly making,offering, authorizing, or promising any
payment, contribution, gift, business courtesy, bribe, rebate, kickback, or
any other thingof value, regardless of form or amount, to any Person to induce
the recipient to act improperly, to obtain a competitive advantagefor any
party, or to receive favorable treatment in obtaining or retaining business or
(ii) corruptly or improperly accepted,received, or solicited anything of value
in connection with the Corporation's business. The Corporation conducts, and
has atall times conducted, its business in compliance with Anti-Bribery Laws
and none of the Corporation's or theCorporation's principals, Stockholders,
directors, officers, employees, agents, consultants, advisors, or
independentcontractors of the Corporation or Representative of any national,
provincial, or local government, wholly or partiallygovernment-owned or
government-controlled entity, political party, political candidate, or public
international organization.
33
2.14 Environmental Compliance
(a) (i)The Corporation is, and has at all times been, in compliance with all
Environmental Laws, which compliance has included obtaining andcomplying at
all times with all approvals, authorizations, consents, licenses,
notifications, Orders, registrations, and permits (andall or any conditions
attaching thereto) of all Governmental Bodies required under Environmental
Laws, (ii) the Corporation has not treated,stored, arranged for or permitted
the disposal of, transported, handled, manufactured, distributed, released, or
exposed any Person to,any Hazardous Materials, or owned or operated any
property or facility that is or has been contaminated by any Hazardous
Materials thatmay give rise to any current or future Liabilities, (iii) the
Corporation has not received any notice regarding any actual or allegedviolation
of, or any Liability under, Environmental Laws, (iv) the Corporation has no
Liability with respect to the presence or allegedpresence of asbestos, silica,
or other Hazardous Materials in any product or item or at or upon any property
or facility, (v) the Corporationhas not assumed, provided an indemnity with
respect to, or otherwise become subject to, Liabilities of any other Person
relating to HazardousMaterials or Environmental Laws, (vi) there are no Claims
pending or threatened against the Corporation related to Hazardous Materialsor
Environmental Laws, and (vii) no capital expenditures are necessary for the
Corporation to continue to operate the Corporation'sbusiness in compliance
with Environmental Laws.
(b) TheCorporation has provided Parent all environmental reports, assessments,
and audits, in each case relating to its or its Affiliates'past or current
operations or properties that the Corporation or its Affiliates occupies or
occupied, that have been provided to, preparedby, obtained, possessed, or are
otherwise available to the Corporation.
(c) NoConflict Minerals are necessary to the functionality or production of,
or are used in the production of, any Corporation Product or anyproduct
currently proposed to be manufactured by the Corporation or on its behalf in
the future.
2.15 Taxes
(a) The Corporation andeach of its Subsidiaries have (i) duly and timely filed
or caused to be filed on or before the applicable due date with eachappropriate
Governmental Body all Tax Returns required to be filed by or with respect to
them, and all Tax Returns filed are true,accurate and complete in all material
respects and (ii) fully and timely paid all Taxes due by or with respect to
them (whether ornot such Taxes have been reflected on any Tax Return). All
Taxes that the Corporation or any of its Subsidiaries have been requiredby
Applicable Law to deduct, withhold, or collect (including with respect to any
amounts paid or benefits provided to employees) forpayment have been duly
deducted, withheld, and collected, and have been paid over to the appropriate
Governmental Body in compliancewith Applicable Law.
34
(b) TheCorporation Balance Sheet reflects all Liabilities for unpaid Taxes of
the Corporation and each of its Subsidiaries for periods (or portionof
periods) through the Corporation Balance Sheet Date. The Corporation has no
Liability for unpaid Taxes accruing after the CorporationBalance Sheet Date
except for Taxes arising in the ordinary course of business and consistent
with past practice following the CorporationBalance Sheet Date. The
Corporation has no Liability for Taxes (whether outstanding, accrued for,
contingent, or otherwise) that are notincluded in the Corporation Balance
Sheet.
(c) (i)There have never been and there are not currently pending or threatened
any Claims by any Governmental Body with respect to Taxes relatingto the
Corporation or any of its Subsidiaries, (ii) no extension or waiver of the
limitation period applicable to any Tax Return of theCorporation or any of its
Subsidiaries is in effect or has been requested, (iii) all deficiencies
claimed, proposed, or asserted or assessmentsmade as a result of any
examinations by any Governmental Body of the Tax Returns of, or with respect
to, the Corporation or any of itsSubsidiaries have been fully paid or fully
settled, and there is no other procedure, proceeding, or contest of any refund
or deficiencyin respect of Taxes pending or on appeal with any Governmental
Body, (iv) there is no agreement relating to any extension of time forfiling
any Tax Return that has not been filed, and (v) neither the Corporation nor
any of its Subsidiaries is nor will be required toinclude any adjustment in
Taxable income for any Tax period pursuant to Section 481 or 263A of the Code
(or any corresponding or similarprovision under Applicable Law with respect to
Taxes) as a result of transactions or events occurring, or accounting methods
employed,prior to the Closing.
(d) Neitherthe Corporation nor any Subsidiary will be required to include any
item of income in, or exclude any item of deduction from, Taxable incomefor
any Taxable period (or portion thereof) ending after the Closing Date as a
result of any (i) change in method of accounting for aTaxable period ending on
or prior to the Closing Date, (ii) "closing agreement" as described in Section
7121 of the Code(or any corresponding or similar provision of other Applicable
Law with respect to Taxes), (iii) deferred intercompany gain or any excessloss
account described in Treasury Regulations under Section 1502 of the Code (or
any corresponding or similar provision of other ApplicableLaw with respect to
Taxes), (iv) installment sale made or open transaction entered into prior to
the Closing Date, (v) prepaid amountreceived or deferred revenue accrued on or
prior to the Closing Date, (vi) election under Section 108(i) of the Code made
on or priorto the Closing Date, or (vii) the application of Section 965 of the
Code (including by reason of an election under Section 965(h) of theCode).
(e) TheCorporation has not been a member of any Affiliated Group that filed or
was required to file a consolidated, combined, or unitary TaxReturn (other
than a group the common parent of which was the Corporation). Neither the
Corporation nor any of its Subsidiaries is norhas ever been a party to or
bound by any Tax indemnity agreement, Tax sharing agreement, Tax allocation
agreement, or similar Contract,and neither the Corporation nor any of its
Subsidiaries has Liability or potential Liability to another Person under any
such agreement.
35
(f) Neitherthe Corporation nor any of its Subsidiaries have Liability for the
Taxes of any Person (other than the Corporation) under Section 1.1502-6of the
Treasury Regulations (or any corresponding or similar provision of Applicable
Law with respect to Taxes), as a transferee or successor,by operation of
Applicable Law, by Contract, or otherwise.
(g) TheCorporation and each of its Subsidiaries have no nexus, and have not
taken any action that could result in the Corporation having taxablepresence
for any Tax purpose in any taxing jurisdiction (whether within or without the
United States) other than the jurisdiction in whichit is formed or organized.
The Corporation and each of its Subsidiaries do not have and have never had a
"permanent establishment"within the meaning of an applicable income Tax
treaty, and do not otherwise have and have never had a taxable presence in any
countryother than the country in which the Corporation and each of its
Subsidiaries are formed or organized. No taxing jurisdiction (whetherwithin or
without the United States) in which the Corporation or any of its Subsidiaries
have not filed a particular type of Tax Returnor paid a particular type of Tax
has asserted that the Corporation or any of its Subsidiaries is required to
file such Tax Return or paysuch type of Tax in such taxing jurisdiction.
(h)There are no Liens for material Taxes upon the assets of the Corporation or
any of its Subsidiaries other than for current Taxes not yetdue and payable or
for Taxes that are being contested in good faith by appropriate proceedings
and for which adequate reserves in accordancewith GAAP has been made in the
Corporation's most recent financial statements.
(i) TheCorporation is not and has never been a United States real property
holding corporation within the meaning of Section 897(c)(2) of theCode.
(j) TheCorporation has delivered or made available to Parent correct and
complete copies of all income Tax Returns and other material Tax Returnsof the
Corporation or its Subsidiaries for which the statute of limitations has not
expired, and all audit reports and statements of deficienciesassessed against
or agreed to by the Corporation or its Subsidiaries.
(k) Neitherthe Corporation nor any of its Subsidiaries has distributed stock
of another Person, nor had its stock distributed by another Person ina
transaction that was purported or intended to be governed in whole or in part
by Section 355 or Section 361 of the Code.
(l) TheCorporation and each of its Subsidiaries have (i) complied with
Applicable Law relating to the payment, reporting, and withholding ofTaxes
(including withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446,
1471, 1472, and 3406 of the Code or similar provisionsunder any foreign law),
(ii) deducted or withheld (within the time and in the manner prescribed by
Applicable Law) from employee wagesor consulting compensation and paid over to
the proper Governmental Body (or is properly holding for such timely payment)
all amountsrequired to be so withheld and paid over under all Applicable Law,
including federal and state income Taxes, Federal Insurance ContributionAct,
Medicare, Federal Unemployment Tax Act, relevant state income and employment
Tax withholding laws, and (iii) timely filed all withholdingTax Returns, for
all periods through and including the Closing Date.
(m) Noelection has been made with respect to Taxes of the Corporation or any
of its Subsidiaries that has not been disclosed in writing to Parent.
36
(n) NoTax ruling has been issued to the Corporation or any of its
Subsidiaries, and neither the Corporation nor any of its Subsidiaries
haveapplied for any Tax ruling. Schedule 2.15(o) to the Corporation Disclosure
Memorandum lists each entity classification election and changein entity
classification that has been made under Treasury Regulation Section 301.7701-3
with respect to the Corporation for U.S. federalincome Tax purposes.
(o) Thereare (and immediately following the Closing there will be) no
Encumbrances on the assets of the Corporation or any of its Subsidiariesrelating
or attributable to Taxes other than Encumbrances for Taxes not yet due and
payable. There is no basis for the assertion of anyClaim relating or
attributable to Taxes which, if adversely determined, would result in any
Encumbrance for Taxes on the assets of theCorporation or any of its
Subsidiaries.
(p) Neitherthe Corporation nor any Subsidiary has participated in (i) a
"reportable transaction" or "listed transaction"within the meaning of Section
1.6011-4(c) of the Treasury Regulations or (ii) any transaction that would
reasonably be likely to requirethe filing of an IRS Schedule UTP (determined
without regard to any asset threshold that may avoid the requirement of filing
such schedule).
(q) TheCorporation and each of its Subsidiaries have disclosed on its Tax
Returns any Tax reporting position taken in any Tax Return that couldresult in
the imposition of penalties under Section 6662 of the Code or any
corresponding or similar provision of Applicable Law withrespect to Taxes.
(r) Neitherthe Corporation not any of its Subsidiaries is, or has it ever
been, party to or the beneficiary of any Tax exemption, Tax holiday, orother
Tax reduction Contract or Order. The Corporation and each Subsidiary have in
their possession official foreign government receiptsfor any Taxes paid by it
to any foreign Tax Authorities for which receipts have been provided or are
customarily provided.
(s) Thereis no limitation on the utilization of any Tax attributes of the
Corporation or any of its Subsidiaries under any provision or provisionsof
U.S. Applicable Law, other than any such limitations resulting from the
Transactions.
(t) Neitherthe Corporation nor any of its Subsidiaries owns or has ever owned,
directly or indirectly, an interest in a corporation, association,joint
venture, partnership, limited liability company, or other "business entity"
within the meaning of Treasury RegulationSection 301.7701-2(a).
(u) Neitherthe Corporation nor any of its Subsidiaries owns, directly or
indirectly, stock or a warrant in any corporation that is (or was at anytime
during the course of such ownership) a passive foreign investment company, as
defined in Section 1297 of the Code.
(v) Neither theCorporation nor any of its Subsidiaries has received or
accrued, whether or not properly reflected as an accrual on the Tax
Returns(including work papers) or books, records or financial statements of
the Corporation, income (or would have received or accruedincome on or before
the Closing Date if the Closing Date was the last day of the taxable year)
that will be required to be includedin the income of a "United States
shareholder" (as defined under Section 951(b) of the Code or similar provision
ofstate or local Applicable Law) in any taxable period that is related or
attributable to (A) "subpart F income" (withinthe meaning of Section 952 of
the Code or similar provision of state or local Applicable Law) or (B) the
holding of "UnitedStates property" (within the meaning of Section 956 of the
Code or similar provision of state or local Applicable Law) on orprior to the
Closing Date.
37
(w) Neitherthe Corporation nor any of its Subsidiaries is nor has ever been
required to report, under Section 999 of the Code, operations in a
countrysubject to an international boycott.
(x) Neitherthe Corporation nor any of its Subsidiaries is a party to a "gain
recognition agreement" within the meaning of the TreasuryRegulations under
Section 367 of the Code.
(y) TheCorporation and each of its Subsidiaries are in compliance with all
applicable transfer pricing laws and regulations, including the executionand
maintenance of contemporaneous documentation substantiating the transfer
pricing practices and methodology of the Corporation andeach of its
Subsidiaries. The prices for any property or services (or for the use of any
property) provided by or to the Corporation andeach of its Subsidiaries are
arm's length prices for purposes of all applicable transfer pricing laws,
including Treasury Regulationspromulgated under Section 482 of the Code.
(z) Neitherthe Corporation nor any of its Subsidiaries is party to an
instrument treated by the issuer as debt for federal income tax purposes
thatshould be treated as equity pursuant to Section 385 of the Code or the
Treasury Regulations promulgated thereunder.
2.16 Tax Consequences
The Corporation has had anopportunity to review with its own Tax advisors the
Tax consequences to it of the Transactions. Neither Parent nor Merger Sub
makes, andthe Corporation is not relying upon, any representations or
warranties to the Corporation regarding the Tax treatment of the Merger, orany
of the Tax consequences to the Corporation or any Stockholder, of this
Agreement, the Transactions, or the other agreements contemplatedby this
Agreement. The Corporation understands that it must rely solely upon its
advisors and not on any statements or representationsby Parent or any of its
agents or Affiliates. The Corporation understands that it (and not Parent)
shall be responsible for its own TaxLiabilities that may arise from the
Transactions.
2.17 Related Party Interests
The Triller LLC 2024 S-1 and/orthe Parent August 2024 Draft 14A sets forth
every related party transaction that is required to be disclosed therein under
the applicableSEC rules (each related party transaction, whether or not
memorialized in writing, is referred to herein as a "
Related PartyContract
"). Except as disclosed in the Triller LLC 2024 S-1 or the Parent August 2024
Draft 14A, neither the Corporationnor any member of Triller LLC, Stockholder,
Corporation Service Provider, or Affiliate of the Corporation (or, to the
Knowledge of theCorporation, any Affiliate of the foregoing), and none of the
immediate family members of any of the foregoing, has any economic interestin
any Material Customer or Material Third-Party Vendor.
38
2.18Insurance
The Corporation has not doneanything or omitted to do anything that would
reasonably be expected to make any of the insurance policies maintained by it
as of theAgreement Date (the "
Policies
") void or voidable, or prejudice the ability to effect insurance on the same
orbetter terms in the future. No insurer under any of the Policies has
disputed, or to the Knowledge of the Corporation, given any indicationthat it
intends to dispute, the validity of any of the Policies on any grounds. No
material Claims have been made, no Claim is outstandingand, to the Knowledge
of the Corporation, no fact or circumstance exists that would reasonably be
expected to give rise to a materialClaim under any of the Policies. No event,
act, or omission has occurred that requires notification under any of the
Policies. None ofthe insurers under any of the Policies has refused, or given
any indication that it intends to refuse, indemnity in whole or in part
inrespect of any material Claims under the Policies. Nothing has been done or
omitted to be done by the Corporation, and there are no factsor circumstances
that would reasonably be expected to entitle the insurers under any of the
Policies to refuse indemnity in whole or inpart in respect of any material
Claims under the Policies.
2.19Brokers or Finders
Except as otherwise providedin Schedule 2.19 to the Corporation Disclosure
Memorandum, the Corporation has not and will not have, directly or indirectly,
any Liabilityfor brokers' or finders' fees, commissions, or any similar
charges in connection with the origin, negotiation, or executionof this
Agreement or in connection with any of the Transactions.
2.20Bank Accounts
The Corporation has made available,and/or will, prior to the Closing Date,
make available to Parent, one or more lists of (a) the names and locations of
all banks, trustcompanies, securities brokers, online money transmitters, and
other financial institutions at which the Corporation has an account orsafe
deposit box or maintains a banking, custodial, trading, or other similar
relationship, (b) each such account, box, and relationship,indicating in each
case the account number and the names of the respective Corporation Service
Providers or other similar Representativesof the Corporation having signatory
power with respect thereto, (c) all existing and valid payment instruments and
authorizations relatedto the accounts, boxes, and relationships required to be
listed under clause (b), including the names of the respective Corporation
ServiceProviders or other similar Representatives of the Corporation, or third
parties controlling such instruments, and (d) each investmentof the
Corporation held through or in each such account, box, and relationship,
including the name of the record and beneficial ownerthereof, the location of
the certificates, if any, the maturity date, if any, and any stock or bond
powers or other authority for transfergranted with respect thereto.
2.21Customers and Suppliers
(a) Forpurposes of this Agreement: (i) "
Material Customers
" means the Corporation's top ten customers by revenuefor fiscal year 2002 and
the nine months ended September 30, 2023; and (ii) "
Material Third-Party Vendors
" meansthe Corporation's top ten vendors by expense for fiscal year 2002 and
the nine months ended September 30, 2023.
39
(b) TheCorporation has made available to Parent a register of all written
Claims received by the Corporation during the 12 months prior to theAgreement
Date from any Material Customer or Material Third-Party Vendor other than in
respect of matters in the ordinary course of business.
2.22Full Disclosure
(a) Noinformation furnished by the Corporation or any of its Representatives
to Parent or its Representatives in connection with this Agreement(including
the Triller LLC 2024 S-1, the Parent August 2024 Draft 14A and all information
in the Corporation Disclosure Memorandum andthe other Exhibits and Schedules
hereto) or the other Operative Documents, and none of the representations or
warranties made by the Corporationor the Corporation herein or in the
Corporation Disclosure Memorandum, the Exhibits or Schedules hereto or any
Operative Document, containsany untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements so made or
informationso delivered not misleading.
(b) TheCorporation shall provide to Parent any updates to the Corporation
Disclosure Memorandum for the period commencing on the Agreement Dateand
ending one Business Day prior to the Closing Date.
ArticleIII
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Except as disclosed in theParent Public Filings or in the corresponding
schedules of the disclosure memorandum delivered by the Corporation to Parent
prior to theexecution of this Agreement (the "
Parent Disclosure Memorandum
"), in order to induce the Corporation to enterinto and perform this
Agreement, Parent represents and warrants to the Corporation, except as
otherwise provided, as follows:
3.1Organization and Good Standing
Parent is a business companyduly organized, validly existing, and in good
standing under the laws of the British Virgin Islands. Merger Sub is a
corporation dulyorganized, validly existing, and in good standing under the
laws of the State of Delaware.
3.2Authority and Enforceability
Each of Parent andMerger Sub has full power and authority to execute this
Agreement and the other Operative Documents to which it is (or will be) aparty
and to perform its obligations hereunder and thereunder and to consummate the
Transactions. This Agreement has been dulyexecuted and delivered by each of
Parent and Merger Sub and, assuming the due authorization, execution, and
delivery by each of theother parties hereto, this Agreement is the valid and
binding obligation of each of Parent and Merger Sub, enforceable against
eachof Parent and Merger Sub in accordance with its terms, and each of the
other Operative Documents to which Parent or the Merger Subis (or will be) a
party, when executed by Parent or Merger Sub, and assuming the due
authorization, execution, and delivery by eachof the other parties thereto, is
(or will be) the valid and binding obligation of Parent and Merger Sub,
enforceable against Parentor Merger Sub in accordance with its terms except,
in each case, to the extent such enforceability is subject to the effect of
anyapplicable bankruptcy, insolvency, reorganization, moratorium or other
Applicable Law affecting or relating to creditors'rights generally and general
principles of equity.
40
3.3Capitalization
(a) Asof August 28, 2024, there were 81,810,429 Parent Ordinary Shares issued
and outstanding. Immediately prior to the Merger Effective Time,there will be
189,265,804 Parent Ordinary Shares issued and outstanding. As of the Closing
Date, an affiliate of the majority shareholderof Parent will own 37,496 Super
Voting Shares, which constitute all the Super Voting Shares that will be
issued and outstanding as ofthe Merger Effective Time.
(b) Asof the date of this Agreement, the authorized capital stock of Merger
Sub consists of 1,000 shares of common stock, par value $0.0001per share, of
which 1,000 shares are issued and outstanding.
(c) Asof the Domestication Date, the authorized capital stock of Delaware
Parent shall be as set forth in the Parent Public Filings.
(c) AllParent Ordinary Shares that are issued and outstanding have been duly
authorized, validly issued, fully paid and non-assessable, and notsubject to
or issued in violation of any purchase option, right of first refusal,
preemptive right, subscription right or any similarright under any provision
of Parent's governing documents or any Contract to which Parent is a party.
None of the outstanding ParentOrdinary Shares have been issued in violation of
any applicable securities Laws.
(d) Exceptas otherwise disclosed in the Parent Public Filings, there are no
options, warrants, preemptive rights, calls, convertible securities,conversion
rights or other rights, agreements, arrangements or commitments of any
character relating to the issued or unissued capitalstock of Parent or
obligating Parent to issue or sell any shares of capital stock of, or other
equity interests in, Parent. Parent isnot a party to, or otherwise bound by,
and has not granted, any equity appreciation rights, participations, phantom
equity or similarrights. Except as otherwise disclosed in the Parent Public
Filings, there are no voting trusts, voting agreements, proxies, shareholderagre
ements or other agreements with respect to the voting or transfer of Parent
Ordinary Shares or any of the equity interests or othersecurities of Parent.
3.4Brokers
Parent has not and will nothave, directly or indirectly, any Liability for
brokers' or finders' fees, commissions, or any similar charges in
connectionwith the origin, negotiation, or execution of this Agreement or in
connection with any of the Transactions.
3.5No Approvals; No Conflicts
The execution, delivery,and performance by each of Parent and Merger Sub of
this Agreement and the other Operative Documents to which Parent or Merger
Subis (or will be) a party and the consummation by each of Parent and Merger
Sub of the Transactions do not and will not(a) violate (with or without the
giving of notice or lapse of time, or both) Applicable Law, (b) require any
consent,approval or authorization of, declaration, filing, or registration
with, or notice to, any Person, other than the filing of theCertificate of
Merger, the filing of a Notice of Continuation Out of the Virgin Islands
together with supporting documents with theRegistrar and receipt by the Parent
a Certificate of Discontinuance from the Registrar, or (c) conflict with or
result in a breachof or constitute a default under any provision of the
governing documents of Parent or Merger Sub.
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3.6Full Disclosure
No information furnished bythe Parent or any of its Representatives to the
Corporation or their Representatives in connection with this Agreement
(including theParent Public Filings and all information in the Corporation
Disclosure Memorandum and the other Exhibits and Schedules hereto) or theother
Operative Documents, and none of the representations or warranties made by the
Corporation herein or in the Corporation DisclosureMemorandum, the Exhibits or
Schedules hereto or any Operative Document, contains any untrue statement of a
material fact or omits to statea material fact necessary in order to make the
statements so made or information so delivered not misleading.
ArticleIV
COVENANTS
4.1Covenants of the Corporation Prior to the Merger Effective Time
Prior to the Merger EffectiveTime, unless Parent otherwise agrees in writing,
the business of the Corporation shall be conducted in the ordinary course of
businessand consistent with past practice and in accordance with Applicable
Law, and the Corporation shall use commercially reasonable effortsto preserve
intact the business organization of the Corporation, to keep available the
services of the current Corporation Service Providersof the Corporation
(except as otherwise set forth in this Agreement), and to preserve the
goodwill and current relationships of the Corporationwith suppliers and other
Persons with which the Corporation has significant business relations. Without
limiting the generality of theforegoing, unless Parent otherwise consents in
advance in writing (which consent shall not be unreasonably withheld, delayed
or conditioned)or as expressly contemplated by this Agreement, the Corporation
shall not (and shall not permit any of its Representatives to), betweenApril
16, 2024 and the earlier of the Closing and the termination of this Agreement
in accordance with Article VIII (it being agreed andacknowledged that any
document signed or action taken by the Corporation in violation of this
Section 4.1 shall be void
ab initio
):
(a) amendor otherwise change the governing documents of the Corporation;
(b) (i)issue, sell, contract to issue or sell, pledge, dispose of, grant,
encumber, or authorize the issuance, sale, pledge, disposition, grant,or
Encumbrance of any Stock, any RSUs, or other ownership interest convertible
into or exchangeable for capital stock or other ownershipinterest, of the
Corporation or the Corporation (other than upon the vesting of Corporation
RSUs into Stock pursuant to the existing termsof the Corporation RSUs), or
(ii) approve, consent to or otherwise authorize the transfer of any shares of
capital stock of the Corporationfrom an existing Stockholder to another Person;
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(c) declare,set aside, make, or pay any dividend or other distribution with
respect to any capital stock of the Corporation;
(d) reclassify,combine, split, subdivide, redeem, purchase, or otherwise
acquire, directly or indirectly, any capital stock of the Corporation;
(e) acquireor invest in any Person or division thereof;
(f)amend, terminate, or fail to renew any Material Contract (or any Contract
that would constitute a Material Contract if it were in effectas of the
Agreement Date), except in the ordinary course of business;
(g) authorize,make, or agree to any single capital expenditure that is in
excess of $500,000 or capital expenditures that are in the aggregate in
excessof $5,000,000;
(h) (i)increase the compensation payable to its senior management beyond 5%,
(ii) make any equity awards to any Corporation Service Provider,(ii) enter
into any new employment or consulting agreement with any employee or
consultant of the Corporation, or amend any such existingagreement, or (iii)
take any action to accelerate the vesting or payment, or fund or in any other
way secure the payment, of compensationor benefits under any Employee Benefit
Plan to the extent not required by this Agreement or such Employee Benefit
Plan as in effect onthe Agreement Date;
(i) makeany material change with respect to accounting methods or practices or
internal accounting control, inventory, investment, credit, allowance,or Tax
procedures or practices;
(j) (i)make, revoke, or alter any Tax election, settle or compromise any Tax
Liability or Tax contest, or take any action that would or is reasonablylikely
to result in the Corporation or any of its Subsidiaries having nexus or
otherwise being subject to Tax or any Tax Return filingobligation in any
jurisdiction in which the Corporation or any of its Subsidiaries have not
filed Tax Returns as of the Agreement Date,file any amended Tax Return or file
any Tax Return being filed late or surrender any right to Claim a Tax refund,
offset, or other reductionin Tax Liability, (ii) extend any statute of
limitations with respect to any Tax Return, (iii) enter into any Tax sharing
or similar agreementor closing agreement, (iv) assume any Liability for the
Taxes of any other Person (whether by Contract or otherwise), (v) consent to
anyextension or waiver of the limitation period applicable to any Claim or
assessment in respect of Taxes, (vi) enter into any intercompanytransactions
giving rise to deferred gain or loss of any kind or take any other similar
action relating to the filing of any Tax Returnor the payment of any Tax if
such similar action would have the effect of increasing the Tax Liability of
Parent or its Affiliates forany period ending after the Closing Date or
decreasing any Tax attribute of the Corporation existing on the Closing Date,
(vii) enterinto or amend any intercompany pricing agreement, or (viii) with
the exception of items occurring as a result of the Transactions, accelerateor
move any Tax deduction, attribute, or benefit to the pre-Closing Tax period or
defer any Tax detriment or taxable income to the post-ClosingTax period, other
than in the ordinary course of business and consistent with past practice;
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(k) commence,pay, discharge, or satisfy any material Claim, Liability, right,
or obligation (absolute, accrued, asserted or unasserted, contingent,or
otherwise), other than the commencement, payment, discharge, or satisfaction
in the ordinary course of business and consistent withpast practice of Claims,
Liabilities, and obligations reflected or reserved against in the Corporation
Balance Sheet or incurred in theordinary course of business and consistent
with past practice since the Corporation Balance Sheet Date and that do not
result from anybreach of Contract, warranty, infringement tort, or violation
of Applicable Law;
(l) forgive,release, cancel, subordinate, write off, or defer any material
indebtedness or other obligations for borrowed money (including principaland
accrued but unpaid interest thereon) owed to the Corporation, or waive any
Claims or rights of material value;
(m) purchaseor sell, transfer, license, lease, or otherwise dispose of any
material properties or assets (real, personal, or mixed, tangible or
intangible),other than in the ordinary course of business and consistent with
past practice;
(n) terminate,or give notice to terminate, any material lease, tenancy, or
license for real property or agree to a new rent or fee payable under
anylease, tenancy, or license for real property;
(o) assign,forfeit, or permit to lapse, or instruct or consent to a future
lapse of, any Corporation Intellectual Property Rights;
(p) makeor approve any material write-off or write-down or any determination
to materially write-off or write-down any of the assets or propertiesof the
Corporation;
(q) pay,loan, or advance any amount to any of the Corporation's current or
former securityholders, debtholders, Corporation Service Providers,or any of
their respective Affiliates, other than (i) cash compensation paid to
Corporation Service Providers at rates not exceeding therates of compensation
paid during the fiscal year last ended and (ii) advances for travel and other
business-related expenses made inthe ordinary course of business and
consistent with past practice;
(r) incorporatea company or apply for any regulatory license in any
jurisdiction (except for renewals of any Corporation Permit in force as of the
AgreementDate in the ordinary course of business and consistent with past
practice); or
(s) agreeor commit to do any of the foregoing.
4.2Notices; Actions
The Corporation shall use commerciallyreasonable efforts to deliver any
notices, if any, required to be delivered to any third party prior to the
Closing.
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4.3Further Action
The Corporation, each ofthe Stockholders, and Parent shall take any actions
reasonably necessary or appropriate to consummate the Transactions and
fulfillthe conditions to the Closing set forth herein as promptly as
practicable following the Agreement Date, including, with respect tothe
Corporation, delivering to Parent such certificates and other documents as
required to satisfy each of the conditions set forthin Article V. For the
avoidance of doubt, to the extent any condition to the Closing is that a
document be acceptable or to thesatisfaction of Parent, this Section 4.3 shall
not require Parent to waive such right or otherwise accept a document that is
notreasonably acceptable or satisfactory to Parent as determined by Parent in
good faith. The Corporation, each of the Stockholders,and Parent shall take
any further actions reasonably necessary or desirable to carry out the
purposes of this Agreement or any otherOperative Document as may be requested
by the other parties hereto.
4.4Confidentiality
At all times on and afterthe Agreement Date, the Corporation shall, and shall
cause each Stockholder, on its behalf and on behalf of its Representatives,
not tomake any statements to any third party with respect to this Agreement,
the existence of this Agreement, or the Transactions, or discloseto any third
party any confidential information of the Corporation or Parent. This Section
4.4 shall not restrict disclosures by the partiesto their legal and financial
advisors (so long as the same are obligated to maintain the confidentiality of
the information provided).Any public announcement relating to this Agreement
or the Transactions must be approved by Parent and the Corporation in advance
in writing;and the Parties agree to issue a joint press release no later than
one Business Day after execution of this Agreement, which will be ina form and
will contain such information that is mutually agreed by the Parties.
4.5Additional Financing
Parent has agreed (on itsbehalf and, as of the Domestication, on behalf of
Delaware Parent) to use its best efforts to invest or arrange for an
investment in theform of equity in the amount of $500 million into Delaware
Parent, post-Merger, on terms and conditions to be agreed pursuant to longform
definitive agreements.
4.6Exclusivity
(a) Priorto the earlier of the Closing and the termination of this Agreement
in accordance with Article VIII, the Corporation shall not (and shallnot
permit their respective directors, officers, employees, equityholders,
Affiliates, financial advisors, attorneys, accountants, orother representatives
(collectively, "
Representatives
") to), directly or indirectly, (i) accept, or enter intoany agreement with
respect to, any existing proposal or offer outstanding as of the Agreement
Date or received after the Agreement Datefrom any other Person to consummate a
Competing Transaction, or (ii) solicit, initiate, knowingly facilitate or
knowingly encourage, engagein discussions or negotiations with, or furnish
information to, any Person other than Parent with respect to a Competing
Transaction.
(b) (i) The Corporationand the Stockholders shall cause any pending
discussions or negotiations with any other Person regarding a Competing
Transaction tobe immediately terminated, (ii) the Corporation shall terminate
access by any Person other than Parent to any virtual or electronicdata room
containing confidential information regarding the Corporation or any
subsidiary of the Corporation and shall request fromeach Person that had
access to any such data room (other than Parent and its Representatives) the
prompt return or destruction ofall non-public information with respect to the
Corporation previously provided to such Person, and (iii) the Corporation and
theStockholders, shall not, and shall cause their respective Representatives
not to, directly or indirectly, deal with any Person otherthan Parent with
respect to discussing or negotiating any Competing Transaction. The
Corporation shall notify Parent promptly, andin any event within 24 hours, if
any inquiry or proposal regarding a Competing Transaction is made, including
in such notice theidentity of the Person making the inquiry or proposal, the
terms thereof, and, if in written form, complete and accurate copiesthereof.
(c) Theparties acknowledge that the Corporation has withdrawn the filing of
the Triller LLC 2024 S-1 on May 6, 2024.
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4.7Tax Matters
(a) TheStockholders shall be liable for, and shall hold Parent and its
Affiliates harmless against, any Transfer Taxes imposed in any Tax
jurisdiction,including any state or local Tax jurisdiction that become payable
in connection with the Transactions. The Holder Representative will,at its own
expense, file, or cause to be filed, in a timely manner all necessary
documents (including all Tax Returns) with respect toall such Transfer Taxes
if required by Applicable Law, and the Holder Representative shall provide
Parent with evidence satisfactory toParent that such Transfer Taxes have been
paid.
(b) Eachof Parent and the Corporation, and their respective Affiliates, shall
file all Tax Returns consistent with the Domestication IntendedTax Treatment
and Merger Tax Treatment (including attaching the statement described in
Treasury Regulations Section 1.368-(a) and/or TreasuryRegulations Section
1.351-3(b) on or with its Tax Return for the taxable year of the Merger), and
take no position inconsistent with theDomestication Intended Tax Treatment or
the Merger Intended Tax Treatment (whether in connection with any audit,
examination or otherTax proceeding, on any Tax Return or otherwise) unless
required to do so pursuant to a "determination" within the meaningof Section
1313(a) of the Code.
(c) Fromthe execution of this Agreement to the earlier of the Closing or the
Merger Effective Time of the termination of this Agreement in accordancewith
Article VIII, the Corporation and each of its Subsidiaries shall, and shall
cause the Corporation Service Providers to, afford theRepresentatives of
Parent access at all reasonable times to the Corporation Service Providers and
properties, offices and other facilities,and books and records of the
Corporation and each of its Subsidiaries and shall furnish Parent with all
financial, operating, and otherdata and information as Parent may reasonably
request. Following the Closing, Parent and the Holder Representative shall
provide eachother with such assistance as may reasonably be requested in
connection with the preparation of any financial statements, Tax Return,audit,
or other Legal Proceeding by any Governmental Body, or any Legal Proceeding
relating to Liabilities for Taxes. Such assistanceshall include making
employees available on a mutually convenient basis to provide additional
information or explanation of material providedhereunder and shall include
providing copies of relevant Tax Returns and supporting material. Parent and
the Holder Representative willretain and provide each other with any records
or information that may be relevant to such preparation, Legal Proceeding, or
determination.Notwithstanding anything to the contrary herein, neither Parent
nor any of its Affiliates (including the Surviving Corporation) shallbe
required to provide any Tax information that it regards as privileged or
confidential, including any Tax Return of Parent or its Affiliates(including
the Surviving Corporation).
46
(d) TheCorporation and each of its Subsidiaries shall satisfy reporting
obligations under Sections 6055 and 6056 of the Code, as applicable,for the
year of the Closing through the Closing Date.
(e) Ator prior to the Closing, as contemplated by Section 5.8(f), the
Corporation shall deliver to Parent a certification, in a form reasonablyaccepta
ble to Parent, certifying that the Merger is exempt from withholding under
Section 1445 of the Code because interests in the Corporationdo not constitute
"United States real property interests" under Section 897(c) of the Code.
4.8Notification of Certain Matters
The Corporation shall deliverprompt notice to Parent of (a) the occurrence or
nonoccurrence of any event that would be reasonably likely to result in any of
the conditionsin Article V not being satisfied, (b) any material failure by
the Corporation to comply with or satisfy any covenant, condition, or
agreementto be complied with or satisfied by it hereunder and (c) any Material
Adverse Effect. The delivery of any notice pursuant to this Section4.8 shall
not limit or otherwise affect the remedies available to Parent hereunder. The
Corporation shall deliver prompt notice to Parentof the vesting of any
Corporation RSUs on or after the Agreement Date.
4.9Access to Information; Interim Period Cooperation
Until the earlier of the Closingand the termination of this Agreement in
accordance with Article VIII, the Corporation shall, and shall cause the
Corporation ServiceProviders to, (a) afford the Representatives of Parent
access at all reasonable times to the Corporation Service Providers,
properties,offices and other facilities, books, and records of the
Corporation, (b) furnish Parent with all financial, operating, and other
dataand information as Parent may reasonably request, and (c) subject to
Applicable Law, use commercially reasonable efforts to facilitatethe planning
for the integration of the Corporation's business with the business of
Delaware Parent following the Closing. The Partiesacknowledged that they have
made all required filings under the HSR Act, and that the HSR Act waiting
period has expired.
4.10Stockholder Approval Matters
The Corporation shall, immediatelyafter the Parent Shareholder Meeting, obtain
the Stockholder Approval by written consent of the requisite majority of
Stockholders andas promptly as practicable, and in any event within five
Business Days after the Closing Date, provide to each Stockholder whose
consentwas not obtained in connection with obtaining the Stockholder Approval
such notice and other information required by the Corporation Certificateof
Incorporation, the Corporation Bylaws and/or the DGCL.
4.11Foreign Private Issuer Election; Parent Proxy Statement
(a) Withinone Business Day after the date of execution of this Agreement,
Parent shall make an election to convert to a foreign private issuer underthe
US securities laws.
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(b) Within threeBusiness Days after the date of execution of this Agreement,
the Parties shall use their best efforts so that Parent may file withthe SEC a
preliminary proxy statement on Form 6-K (as amended or supplemented from time
to time, the "
Parent ProxyStatement
") relating to the meeting of Parent Shareholders (including any adjournment
or postponement thereof, the"
Parent Shareholder Meeting
") in connection with the approval by Parent's shareholders of: (i)
theYorkville Share Issuance Proposal, (ii) the Charter Amendment Proposal,
(iii) the Domestication Proposal, (iv) the OrganizationalDocuments Proposal,
(v) the Merger Agreement Proposal, (vi) the Nasdaq Proposal, (vii) the
Incentive Plan Proposal, (viii) theElection of Directors Proposal and (ix) the
Adjournment Proposal, as each will be defined in the Parent Proxy Statement,
and anyother proposals as determined by Parent in its reasonable discretion to
be necessary or appropriate in connection with thetransactions contemplated
hereby (collectively, the "
Parent Transaction Proposals
"). The Corporation shallfurnish all information concerning such party as
Parent may reasonably request in connection with such actions and the
preparationof the Parent Proxy Statement, and shall use its commercially
reasonable efforts to act expeditiously toward mutual objective offiling the
preliminary Parent Proxy Statement as soon as possible after the date of
execution of this Agreement, including, withoutlimitation, by providing
audited 2023 financial statements and all required 2024 interim financial
information, pro forma and otherfinancial and all other information to Parent
with sufficient advance notice for Parent and the Corporation to incorporate
theinformation contained therein into the full Parent Proxy Statement within
the agreed upon objective of filing such document withinten Business Days of
the date of execution of this Agreement. Each such party each shall use their
commercially reasonable effortsto (1) cause the Proxy/ Registration Statement
when filed with the SEC to comply in all material respects with all Laws
applicablethereto, including all rules and regulations promulgated by the SEC,
(2) respond as promptly as reasonably practicable to andresolve all comments
received from the SEC concerning the Parent Proxy Statement and (3) cause the
Parent Proxy Statement to bedeclared effective under the Exchange Act as
promptly as practicable. As promptly as practicable after finalization
andeffectiveness of the Parent Proxy Statement, Parent shall mail (or cause to
be mailed) the Parent Proxy Statement to theParent's shareholders. Each party
shall furnish to the other parties all information concerning itself, its
Subsidiaries,officers, directors, equityholders, managers, shareholders, and
Service Providers and information regarding such other matters asmay be
reasonably necessary or advisable or as may be reasonably requested in
connection with the Information, a current report ofParent on Form 6-K
pursuant to the Exchange Act in connection with the Transactions, or any other
statement, filing, notice orapplication made by or on behalf of Parent, the
Corporation or their respective Affiliates to any regulatory authority
(includingNasdaq) in connection with the Transactions.
4.12Registration of Securities
Promptly after Closing, DelawareParent shall prepare and file with the SEC, a
Registration Statement on an appropriate form, covering the resale of the
Delaware ParentCommon Stock into which Corporation Convertible Notes are
converted and the shares of Delaware Parent Common Stock underlying the
DelawareParent RSUs, and shall use commercially reasonable efforts to cause
such Registration Statement to be declared effective under the SecuritiesAct
as promptly as possible after the filing thereof.
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ArticleV
CONDITIONS PRECEDENT TO OBLIGATIONS OFPARENT AND MERGER SUB TO THE CLOSING
The obligations of Parentand Merger Sub to perform and observe the covenants,
agreements and conditions hereof to be performed and observed by Parent and
MergerSub at, or in connection with, the Closing shall be subject to the
reasonable satisfaction (or waiver by Parent) of the following conditions:
5.1Accuracy of Representations and Warranties
(a) Therepresentations and warranties of the Corporation contained herein
(including the applicable Exhibits or Schedules to the CorporationDisclosure
Memorandum) and in the other Operative Documents (other than the Fundamental
Representations and the representations and warrantiescontained in Section
2.6, which are addressed in Section 5.1(b)) (i) shall have, if qualified as to
materiality, been true and correctin all respects, and, if not so qualified,
been true and correct in all material respects, when made and (ii) shall be,
if qualified asto materiality, true and correct in all respects, and, if not
so qualified, true and correct in all material respects, as of the ClosingDate
as though made on the Closing Date, except to the extent that such
representations and warranties speak as of an earlier date (inwhich case such
representation and warranty shall be so true and correct as of such earlier
date).
(b) TheFundamental Representations and the representations and warranties of
the Corporation contained in Section 2.6(b) shall have been trueand correct in
all respects when made and shall be true and correct in all respects as of the
Closing Date as though made on the ClosingDate.
5.2Performance of Agreements
The Corporation shall haveperformed in all material respects all obligations
and agreements and complied with all covenants contained in this Agreement or
any otherOperative Document to be performed and complied with by them at or
prior to the Closing.
5.3Compliance with Laws
The consummation of the Transactionsshall be permitted by Applicable Law to
which Parent, Merger Sub, or the Corporation is subject.
5.4Material Adverse Effect
Since the Agreement Date andthrough the Closing, the Corporation shall not
have experienced a Material Adverse Effect or an event or circumstance that
may resultin or cause a Material Adverse Effect.
5.5Legal Proceedings
No Order issued by any courtof competent jurisdiction or other legal or
regulatory restraint or prohibition limiting or restricting the consummation
of the Transactionsor Parent's ownership, conduct, or operation of the
Corporation's business following the Closing shall be in effect, and
noGovernmental Body or other Person shall have commenced or threatened to
commence any Legal Proceeding seeking any of the foregoing, challengingany of
the Transactions or seeking the recovery of a material amount of damages.
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5.6Delivery of Certain Documentation
The Corporation shall provideto Parent written evidence the Stockholders are
accredited investors, as such term is defined in SEC Regulation D; and no more
than 35Stockholders shall have failed to deliver such written evidence to the
Corporation.
5.7Regulatory and Third Party Approvals
The parties to not anticipatethat any regulatory, governmental or other third
party approvals or consents are required in order to consummate the
Transactions, butif any of the foregoing are required, the parties shall use
their respective best efforts to provide such approvals or consents so thatthe
Transactions may be consummated at the earliest possible time.
5.8Receipt of Closing Deliveries
The Corporation shall deliverto Parent, at the Closing:
(a) customaryclosing certificates from the Corporation's Chief Executive
Officer and a good standing certificate of the Corporation;
(b) anyconsents required by regulatory/governmental bodies or other third
parties that have been obtained by any party or parties;
(c) theFinal Closing Consideration Spreadsheet in accordance with Section 1.7.3;
(d) thewritten resignation of such directors and officers of the Corporation
to be determined by Parent (in their capacities as such) to be effectiveas of
the Closing Date;
(e) a statement, issued andproperly executed by the Corporation pursuant to
Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), certifying that
interestsin the Corporation, including shares of Stock, do not constitute
"United States real property interests" under Section 897(c)of the Code
substantially in the form attached hereto as
Exhibit I
;
(f) executedOperative Documents that are to be signed by the Corporation, to
the extent not executed prior to the Closing;
(g) Boardresolutions and Stockholder Approval Documentation;
(h) executedagreements terminating all contracts between the Corporation, any
Subsidiary of the Corporation, and any officer or director of the
Corporationor Subsidiary thereof that were entered into on or after April 16,
2024 in violation of Section 4.1 hereof (including without limitationthe First
Amended and Restated Employment Agreement dated as of July 31, 2024 between
the Corporation, Triller Platform Co. and BobbySarnevesht);
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(i) aletter of resignation signed by Bobby Sarnevesht, resigning as an officer
and director of the Corporation and its Subsidiaries;
(j) lettersof resignation signed by all directors and officers of the
Corporation and its Subsidiaries; and
(k) theCertificate of Merger, executed by the Corporation.
ArticleVI
CONDITIONSPRECEDENT TO OBLIGATIONS OF THE CORPORATION TO THE CLOSING
The obligations of the Corporationto perform and observe the covenants,
agreements, and conditions hereof to be performed and observed by it at, or in
connection with,the Closing shall be subject to the reasonable satisfaction
(or waiver by the Corporation) of the following conditions:
6.1Accuracy of Representations and Warranties
The representations and warrantiesof Parent and Merger Sub contained herein
(including the applicable Exhibits or Schedules to the Parent Disclosure
Memorandum) and inthe other Operative Documents (i) shall have, if qualified
as to materiality, been true and correct in all respects, and, if not so
qualified,been true and correct in all material respects, when made and (ii)
shall be, if qualified as to materiality, true and correct in all
respects,and, if not so qualified, true and correct in all material respects,
as of the Closing Date as though made on the Closing Date, exceptto the extent
that such representations and warranties speak as of an earlier date (in which
case such representation and warranty shallbe so true and correct as of such
earlier date).
6.2Performance of Agreements
Parent and Merger Sub shallhave performed in all material respects all
obligations and agreements and complied with all covenants contained in this
Agreement orany other Operative Document to be performed and complied with by
it at or prior to the Closing.
6.3Compliance with Laws
The consummation of the Transactionsshall be legally permitted by Applicable
Law to which Parent, Merger Sub or the Corporation is subject.
6.4Receipt of Closing Deliveries
Parent shall deliver to the Corporation, at orprior to the Closing, customary
closing certificates from Parent's Chief Executive Officer and Chief Financial
Officer and a goodstanding certificate of Delaware Parent; the Certificate of
Merger, executed by Merger Sub; the Certificate of Discontinuance; as wellas
executed Operative Documents that are to be signed by Delaware Parent or
Merger Sub, to the extent not executed prior to the Closing.
6.5Regulatory and Third Party Approvals
The parties to not anticipatethat any regulatory, governmental or other third
party approvals or consents are required in order to consummate the
Transactions, butif any of the foregoing are required, the parties shall use
their respective best efforts to provide such approvals or consents so thatthe
Transactions may be consummated at the earliest possible time.
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ArticleVII
SURVIVAL; HOLDER REPRESENTATIVE
7.1No Survival of Representations, Warranties, and Covenants
(a)
The representations and warranties of the Corporation contained in this
Agreement or any other Operative Document or in any certificatedelivered
pursuant hereto shall survive until the Closing Date, after which such
representations and warranties shall expire and shallbe of no further force or
effect as of the Closing.
(b)
By virtue of the Stockholder Approval, each Stockholder shall irrevocably
(except as set forth in Section 7.1(c)) authorizeand appoint Bobby Sarnevesht
bobby@triller.co (together with any replacement representative appointed
pursuant to Section 7.1(c),the "
Holder Representative
"), with full power of substitution, as such Stockholder's representative
andattorney-in-fact and agent to act for such Stockholder with respect to all
matters arising in connection with this Agreement and the OperativeDocuments,
including full power and authority, exercisable in the sole discretion of the
Holder Representative, to: (i) take anyaction contemplated to be taken by the
Stockholders under this Agreement or any other Operative Document, (ii)
negotiate, determine,defend, and settle any disputes that may arise under or
in connection with this Agreement or any other Operative Document, and (iii)
make,execute, acknowledge, and deliver any releases, assurances, receipts,
requests, instructions, notices, agreements, certificates, and anyother
instruments, and generally do any and all things and take any and all actions
that the Holder Representative may deem necessaryor advisable in connection
with this Agreement or any other Operative Document.
(c)
The Holder Representative may be removed by written agreement among
Stockholders representing a majority in interest of the Stockholderscalculated
with reference to each Stockholder's Pro Rata Share. The Holder Representative
may resign at any time upon giving 45 BusinessDays' prior written notice of
such resignation to Parent and each Stockholder but shall exercise all the
powers enumerated in Section 7.1(a) until the effective date of such
resignation. In the event of such removal or resignation, or upon the death or
Disability of,the Holder Representative, Parent and Stockholders representing
a majority in interest of the Stockholders calculated with reference toeach
Stockholder's Pro Rata Share shall promptly agree upon a replacement Holder
Representative.
ArticleVIII
TERMINATION
8.1Termination
This Agreement may be terminatedat any time prior to the Closing:
(a)
by the written consent of Parent and the Corporation;
(b)
by Parent, if Parent reasonably concludes in good faith that any of the
conditions in Article V is or becomes impossible to satisfy(other than solely
as a result of any Breach of this Agreement by Parent);
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(c)
by Parent, in the event of a Breach by the Corporation of any representation,
warranty, covenant, or agreement contained hereinor in any Operative Document
that has not been cured or is not curable by the Corporation within 15 days
after Parent delivers noticeto the Corporation regarding such Breach;
(d)
by the Corporation, in the event of a Breach by Parent of any representation,
warranty, covenant, or agreement contained hereinor in any Operative Document
that has not been cured or is not curable by Parent within 15 days after the
Corporation delivers noticeto Parent regarding such Breach;
(e)
by the Corporation if Parent experiences a Material Adverse Effect, or by
Parent if the Corporation experiences a Material AdverseEffect; or
(f)
by Parent, if the Corporation has not provided the notices required pursuant
to Section 4.10 no later than five Business Days afterthe Agreement Date.
8.2Effect of Termination
In the event of terminationof this Agreement pursuant to Section 8.1, written
notice thereof shall forthwith be given by the terminating party to the other
parties,and this Agreement shall thereupon terminate and become void and have
no further force or effect, and the Transactions shall be abandonedwithout
further action by the parties hereto. Notwithstanding anything to the contrary
herein, this Section 8.2 and Article IX shall surviveindefinitely, and nothing
herein shall relieve any party hereto of any Liability for Fraud or any
willful Breach of this Agreement occurringprior to such termination.
ArticleIX
GENERAL
9.1Expenses
Except as otherwise set forthherein, whether or not the Merger is consummated,
each party shall pay its own Transaction Costs.
53
9.2Notices
All notices and other communicationsamong the parties shall be in writing and
shall be deemed to have been duly given (i) when delivered in person, (ii)
when delivered afterposting in the United States mail having been sent
registered or certified mail return receipt requested, postage prepaid, (iii)
whendelivered by FedEx or other nationally recognized overnight delivery
service, or (iv) when delivered by email during normal business hoursat the
location of the recipient, and otherwise on the next following Business Day,
addressed as follows:
TO PARENT OR MERGER
SUB (AND FOLLOWING THE
MERGER EFFECTIVE TIME,
THE SURVIVING CORPORATION):
AGBA Group Holding Limited
AGBA Tower
68 Johnston Road
Wan Chai, Hong Kong SAR
Attention: Ng Wing Fai, Chief Executive Officer
Email: wingfai.ng@agba.com
with a copy to (which shall not
constitute notice):
Loeb & Loeb LLP
10100 Santa Monica Blvd #2200
Los Angeles, CA 90067
Attention: Lawrence Venick, Esq.
Email: lvenick@loeb.com
TO THE CORPORATION
(PRIOR TO THE MERGER
EFFECTIVE TIME):
Triller Corp.
7119 West Sunset Boulevard Suite 782
Los Angeles, CA 90046
Attention: Bobby Sarnevesht
Email: bobby@triller.co
TO THE HOLDER
REPRESENTATIVE:
Bobby Sarnevesht
7119 West Sunset Boulevard Suite 782
Los Angeles, CA 90046
Email: bobby@triller.co
54
9.3Severability
If any term or other provisionof this Agreement is invalid, illegal, or
incapable of being enforced by any rule of law, or public policy, all other
conditions and provisionsof this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the
Transactions isnot affected in any manner adverse to any party hereto. Upon
such determination that any term or other provision is invalid, illegal,or
incapable of being enforced, the parties shall negotiate in good faith to
modify this Agreement so as to effect the original intentof the parties to the
fullest extent possible.
9.4Entire Agreement
This Agreement (includingthe Corporation Disclosure Memorandum, the Parent
Disclosure Memorandum and all other Exhibits and Schedules hereto), and the
other OperativeDocuments, constitute the entire agreement among the parties
with respect to the subject matter hereof and thereof and supersede all
prior(but not concurrent) agreements and undertakings, both written and oral,
among the parties, or any of them, with respect to the subjectmatter hereof
and thereof.
9.5Assignment; Parties in Interest
This Agreement shall not beassigned by operation of law or otherwise, and any
such assignment shall be null and void, except that any or all rights and
obligationsof Parent and Merger Sub may be assigned to one or more Parent
Entities, so long as such assignment does not relieve Parent and MergerSub of
any of its obligations hereunder. Subject to the foregoing, this Agreement
shall be binding on and inure solely to the benefitof the parties hereto and
their respective successors, heirs, legal representatives and permitted
assigns, and nothing in this Agreement,express or implied, is intended to or
shall confer upon any other Person any right, benefit or remedy of any nature
whatsoever under orby reason of this Agreement.
9.6Governing Law; Jurisdiction; Waiver of Jury Trial
This Agreement shall be governedby, and construed in accordance with, the laws
of the State of Delaware, without giving effect to any choice or conflict of
law, provision,or rule that would cause the application of laws of any other
jurisdiction. In any action among or between any of the parties arisingout of
or relating to this Agreement, including any action seeking equitable relief,
each of the parties irrevocably and unconditionallyconsents and submits to the
exclusive jurisdiction and venue of the state and federal courts located in
Wilmington, Delaware. Each partyhereby irrevocably waives all right to trial
by jury in any Legal Proceeding (whether based on Contract, tort, or
otherwise) arising outof or relating to this Agreement and the other Operative
Documents, the Transactions, or the actions of such parties in the
negotiation,administration, performance, and enforcement hereof and thereof.
9.7Headings; Construction
The table of contents andheadings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or
interpretationof this Agreement. The parties have participated jointly in the
negotiation and drafting of this Agreement.
55
In the event an ambiguity or question of intentor interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties, and no
presumption or burden of proofshall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement. Any
reference toany federal, state, local, or foreign statute or Applicable Law
shall be deemed also to refer to all amendments and rules and regulationspromulg
ated thereunder, unless the context requires otherwise. For purposes of
Article II, any reference to the "Corporation"shall include any predecessor
entity. The word "including" shall mean including without limitation. The word
"or"is disjunctive, but not necessarily exclusive. The words "hereof,"
"herein," "hereunder," and similarterms in this Agreement refer to this
Agreement as a whole, including exhibits and schedules hereto, and not to any
particular provisionof this Agreement. When a reference is made in this
Agreement to Annexes, Articles, Exhibits, Sections, or Schedules, such
reference shallbe to an Annex, Article, Exhibit, Section, or Schedule to this
Agreement unless otherwise indicated. For purposes of Article II, the
words"provide," "deliver," "made available," "furnish," and similar terms in
this Agreementshall mean provide by email or in a data room at least one
Business Day prior to the Agreement Date. Pronouns in the masculine,
feminine,and neuter genders shall be construed to include any other gender,
and words in the singular form shall be construed to include the pluraland
vice versa, unless the context otherwise requires. If any party has Breached
any representation, warranty, or covenant contained hereinin any respect, the
fact that there exists another representation, warranty, or covenant relating
to the same subject matter (regardlessof the relative levels of specificity)
that the party has not Breached shall not detract from or mitigate the fact
that the party is inBreach of the first representation, warranty, or covenant.
All accounting terms used herein and not expressly defined herein shall,
exceptas otherwise noted, have the meanings assigned to such terms in
accordance with GAAP. References to clauses without a cross-referenceto a
Section or subsection are references to clauses within the same Section or, if
more specific, subsection. The symbol "$"refers to United States Dollars. All
references to "days" shall be to calendar days unless otherwise indicated as a
"BusinessDay." Any action otherwise required to be taken on a day that is not
a Business Day shall instead be taken on the next succeedingBusiness Day, and
if the last day of such period is a non-Business Day, the period in question
shall end on the next succeeding BusinessDay. Unless indicated otherwise, all
mathematical calculations contemplated by this Agreement shall be rounded to
the tenth decimal place,except in respect of payments, which shall be rounded
to the nearest whole United States cent.
9.8Counterparts
This Agreement may be executedand delivered in one or more counterparts,
either manually or electronically (including by PDF and electronic mail), each
of which shallbe deemed to be an original but all of which together shall
constitute one and the same agreement. No counterpart shall be effective
unlessand until each party has executed at least one counterpart.
9.9Remedies
Each of the Corporation,on the one hand, and Parent, on the other hand,
acknowledges and agrees that its counterpart(ies) would be damaged irreparably
ifany provision of this Agreement is not performed in accordance with its
specific terms or otherwise is Breached. Accordingly, eachsuch party agrees
that the aggrieved party shall be entitled to an injunction to prevent
Breaches of any provision of thisAgreement and to enforce specifically this
Agreement and the terms and provisions hereof, in addition to any other remedy
availableat law or in equity.
56
9.10Amendment
This Agreement may be amended,modified, or supplemented at any time, but only
pursuant to an instrument in writing signed by Parent and (a) prior to the
Closing, theCorporation or (b) following the Closing, the Holder Representative,
and any such amendment shall be binding on all parties hereto.
9.11Waiver
Parent may (a) extend thetime for the performance of any obligation of the
Corporation or the Holder Representative under this Agreement or any other
OperativeDocument, (b) waive any inaccuracy in the representations and
warranties of the Corporation contained in this Agreement or any other
OperativeDocument, or (c) waive compliance by the Corporation or the Holder
Representative with any agreement or condition contained in this Agreementor
any other Operative Document. The Holder Representative (and, prior to the
Closing, the Corporation) may (i) extend the time for theperformance of any
obligation of Parent or Merger Sub under this Agreement or any other Operative
Document, (ii) waive any inaccuracyin the representations and warranties of
Parent or Merger Sub contained in this Agreement or any other Operative
Document, or (iii) waivecompliance by Parent or Merger Sub with any agreement
or condition contained in this Agreement or any other Operative Document. Any
extensionor waiver contemplated in this Section 9.11 shall be valid only if
set forth in an instrument in writing signed by Parent or the HolderRepresentati
ve (or, prior to the Closing, the Corporation), as applicable, and shall apply
only as set forth in such instrument and shallnot operate as a waiver of, or
estoppel with respect to, any failure to comply with any other obligation,
covenant, agreement or conditioncontained herein. Any extension or waiver by
the Holder Representative (or, prior to the Closing, the Corporation) shall be
binding onthe Corporation and the Holder Representative.
[Signature Pages Follow]
57
IN WITNESS WHEREOF, the parties hereto have entered into and signedthis
Agreement as of the date and year first above written.
AGBA GROUP HOLDING LIMITED
By:
Name: Wing-Fai Ng
Its: Chief Executive Officer
AGBA SOCIAL INC.
By:
Name: Pei Huang Shu
Its: President
TRILLER CORP.
By:
Name: Bobby Sarnevesht
Its: Chief Executive Officer
BOBBY SARNEVESHT, HOLDER REPRESENTATIVE
[Signature Page to Agreement and Plan of Merger]
ANNEX A
DEFINITIONS
"
2010 Health Care Law
" has the meaning setforth in Section 2.9(j).
"
2023 Unaudited Financial Statements
" hasthe meaning set forth in Section 2.5(a).
"
Affiliate
" means, with respect to a Person,any other Person that, directly or
indirectly, controls or is controlled by or is under common control with the
first Person.
"
Affiliated Group
" means any affiliated,consolidated, combined, unitary, or similar group,
including any arrangement for group or consortium relief or similar
arrangement.
"
Agreement
" has the meaning set forth inthe first paragraph of this Agreement.
"
Agreement Date
" has the meaning set forthin the first paragraph of this Agreement.
"
Annual Financial Statements
" has the meaningset forth in Section 2.5(a).
"
Anti-Bribery Laws
" means the U.S. ForeignCorrupt Practices Act 1977, as amended, any rules and
regulations thereunder, the OECD Convention on Bribery of Foreign Public
Officialsin International Business Transactions and any legislation
implementing that convention and any similar anti-corruption laws to the
extentthat they are applicable to the Corporation or any of its Representatives.
"
Applicable Law
" means, with respect to anyPerson, any federal, state, foreign, local,
municipal, or other law, statute, constitution, legislation, principle of
common law, resolution,ordinance, code, edict, decree, guidance, regulation,
rule, directive, license, permit, or requirement issued, enacted, adopted,
promulgated,implemented, or otherwise put into effect by or under the
authority of any Governmental Body, and any Orders applicable to such Personor
such Person's Affiliates, or to any of their respective employees, assets,
properties, or businesses.
"
Breached
" means a "
Breach
"of a representation, warranty, certification, covenant, obligation, or other
provision of this Agreement or any Operative Document willbe deemed to have
occurred, or a representation, warranty, certification, covenant, obligation,
or other provision of this Agreement orany Operative Document will have been "
Breached
," if there is or has been (a) any inaccuracy in or breach of,or any failure
to perform or comply (in whole or in part) with, such representation,
warranty, certification, covenant, obligation, orother provision, or (b) any
Claim (by any Person) or other occurrence or circumstance that is or was
inconsistent with such representation,warranty, certification, covenant,
obligation, or other provision, and the term "
Breach
" means any such inaccuracy,breach, failure, Claim, occurrence or circumstance.
"
Business Day
" means any day, other thana Saturday, a Sunday, or any other day on which
commercial banks in New York, New York or Seattle, Washington are authorized
or requiredby Applicable Law to be closed.
"
BVI Companies Act
" means the British VirginIslands Business Companies Act.
A-
1
"
Cancelled RSU Shares
" has the meaning setforth in Section 1.9.
"
Certificate of Discontinuance
" has the meaningset forth in the Preamble.
"
Certificate of Domestication
" has the meaningset forth in the Preamble.
"
Certificate of Formation
" has the meaningset forth in Section 2.2(a).
"
Certificate of Merger
" has the meaning setforth in Section 1.4.
"
Child
" has the meaning set forth in Section 2.10.11(d).
"
Claim
" means any claim, demand, complaint,cause of action, suit, proceeding,
arbitration, audit, hearing, investigation, or inquiry (whether formal or
informal, civil, criminal,or administrative).
"
Closing
" has the meaning set forth in Section 1.3.
"
Closing Date
" has the meaning set forthin Section 1.3.
"
Code
" means the Internal Revenue Code of1986, as amended.
"
Common Per Share Merger Consideration
" meansone share of Delaware Parent Common Stock, to be paid as consideration
for each full share of Series A Common Stock and for each fullshare of Series
B Common Stock, before taking into account the Reserved Shares.
"
Common Stock
" or "
CorporationCommon Stock
" means the Corporation's Series A Common Stock and Series B Common Stock,
taken together.
"
Corporation Balance Sheet
" has the meaningset forth in Section 2.5(a).
"
Corporation Balance Sheet Date
" has themeaning set forth in Section 2.5(a).
"
Corporation Bylaws
" means the Bylaws ofthe Corporation,
"
Corporation Certificate of Incorporation
"means the Certificate of Incorporation of the Corporation.
"
Corporation Convertible Notes
" means theconvertible notes issued by the Corporation to its convertible note
investors.
"
Corporation Convertible Warrants
" meansthe warrants issued by the Corporation to certain warrant investors
which warrants automatically convert into Corporation Common Stockby virtue of
the Merger.
"
Corporation DataAgreement
" refers to any (a) contractual commitments made by the Corporation to its
customers, employees, users, orother individuals for the Processing Personal
Information, (b) applicable contractual obligations concerning the privacy
andsecurity of Personal Information in the Corporation's custody or control,
and (c) requirements of any privacy orsecurity-related self-regulatory
organizations or certifications to which the Corporation is obligated to
adhere.
A-
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"
Corporation Disclosure Memorandum
" has themeaning set forth in the first paragraph of Article II. The
Corporation Disclosure Memorandum shall be updated as necessary through
andincluding the Agreement Date.
"
Corporation Intellectual Property Rights
"means all intellectual property, industrial property, and proprietary rights
worldwide, whether registered or unregistered, owned (orpurported to be owned)
singularly or jointly with a third party or third parties, applied for, used
(or purported to be used), licensed(whether on an exclusive or non-exclusive
basis and as licensor or licensee) by or to, or under obligation of assignment
to, the Corporation,including any and all (a) foreign and domestic trade
names, trademarks, service marks, emblems, signs, insignia, slogans, logos,
designrights, mask works, trade dress, other similar designations of source or
origin and general intangibles of like nature, (b) rights indatabases, (c)
copyrights and moral rights (including analogous rights thereto), (d) rights
of publicity; (e) trade secrets and know-how(including analogous rights
thereto and whether or not reduced to practice), (f) patents and other
governmental grants for the protectionof inventions or industrial designs,
including any applications for any such patents or grants, whether already
filed or in preparationor contemplation of filing, (g) domain names, web
addresses, and other universal resource locator (URL) registrations, (h)
social mediaaccounts, and (i) all associated rights and all registrations,
applications, renewals, extensions, and continuations (in whole or in part)of
any of the foregoing, together with all goodwill associated therewith and all
rights and causes of action for infringement, misappropriation,violation,
misuse, dilution, unfair trade practice or otherwise associated therewith.
"
Corporation IP
" means all Corporation Technologyand Corporation Intellectual Property Rights.
"
Corporation IP Agreements
" means all InboundLicenses and Outbound Licenses.
"
Corporation IP Protection Agreements
" hasthe meaning set forth in Section 2.10.7.
"
Corporation IP Registrations
" has the meaningset forth in Section 2.10.2.
"
Corporation-Owned IP
" means all CorporationIP other than Third-Party IP.
"
Corporation Permits
" has the meaning setforth in Section 2.13(a).
"
Corporation Privacy Commitments
" refersto material obligations contained in or resulting from the
Corporation's internal and external data privacy, data security, SecurityBreach,
or similar obligations for the Processing or security of Personal Information.
"
CorporationProducts
" means all products or services, either complete or under development, (a)
that are currently or that arecurrently intended to be, developed,
manufactured, marketed, sold, offered for sale, imported, exported, supplied,
promoted,licensed, distributed, supported, hosted, serviced, made available,
maintained, or otherwise commercialized by the Corporation, (b)that were
historically developed, manufactured, marketed, sold, offered for sale,
imported, exported, supplied, promoted, licensed,distributed, supported,
hosted, serviced, made available, maintained, or otherwise commercialized by
the Corporation, (c) from whichthe Corporation recognizes any revenue
(including revenue associated with maintenance or service agreements), (d)
that are currentlyused or currently intended to be used to provide services to
the Corporation's customers, or (e) that have been developed byor for the
Corporation, in each case together with any and all supplements, modifications,
updates, corrections, and enhancements tosuch products or services, shipping
versions of such products or services, any English and foreign language
versions of suchproducts or services; and any and all documentation relating
to the foregoing.
A-
3
"
Corporation Service Providers
" means directors,officers, employees, agents, consultants, advisors, or
independent contractors of the Corporation.
"
Corporation Technology
" means all Technologyowned (or purported to be owned) singularly or jointly
with a third party or third parties, used (or purported to be used), or
licensed(whether on an exclusive or non-exclusive basis and as licensor or
licensee) by or to the Corporation.
"
Corporation Warrants
" means the warrantsto purchase Corporation Common Stock existing as of the
Agreement Date.
"
Competing Transaction
" means, other thanthe Transactions, any of the following: (a) any merger,
consolidation, share exchange, recapitalization, or establishment of or
investmentin the Corporation or another legal entity or other similar
transaction involving the Corporation or any subsidiary of the Corporation,(b)
any sale, lease, license, exchange, mortgage, pledge, transfer, or other
disposition of a material portion of the assets of the Corporationor any
subsidiary of the Corporation (other than any non-exclusive license entered
into in the ordinary course of business consistentwith past practice), or any
sale, exclusive license, or other transfer of any intellectual property, of
the Corporation or any subsidiaryof the Corporation, or any entry into a
development, licensing, or other agreement with a third party out of the
ordinary course of businessthat could reasonably be expected to deprive Parent
of the benefits of the Transactions, (c) any sale or transfer of shares or
other securities(or instruments that provide the right or ability to acquire
shares or other securities) of the Corporation or any subsidiary of the
Corporation,or (d) any change of control transaction involving the Corporation
or any subsidiary of the Corporation (however structured).
"
Conflict Minerals
" means (a) columbite-tantalite(coltan), cassiterite, gold, wolframite, or
their derivatives that originates in the Democratic Republic of the Congo or a
country thatshares an internationally recognized border with the Democratic
Republic of the Congo and (b) any other mineral or its derivatives,
theexploitation and trade of which is determined by the Secretary of State of
the United States to be financing conflict in the DemocraticRepublic of the
Congo or a country that shares an internationally recognized border with the
Democratic Republic of the Congo.
"
Contract
" means any contract, agreement,permission, consent, lease, license, release,
covenant not to sue, commitment, plan, arrangement, undertaking, or
understanding, oralor written.
"
Contributor
" has the meaning set forth inSection 2.10.7.
A-
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"
Copyleft License
" means any license thatrequires, as a condition of use, that any Software or
content subject to such license that is distributed, modified or interacted
withthrough a network (including making available to third parties as a
service) (or any other Software or content incorporated into, derivedfrom,
used, or distributed with any such Software or content): (i) in the case of
Software, be made available to any third-party recipientin a form other than
binary form (e.g., source code form), (ii) be made available to any
third-party recipient under terms that allowpreparation of derivative works,
(iii) in the case of Software, be made available to any third-party recipient
under terms that allowSoftware or interfaces therefor to be reverse
engineered, reverse assembled, or disassembled (other than to the extent any
contrary restrictionwould be unenforceable under Applicable Law), or (iv) be
made available to any third-party recipient at no license fee. Copyleft
Licensesinclude the GNU General Public License, the GNU Lesser/Library General
Public License, the GNU Affero General Public License, the MozillaPublic
License, the Common Development and Distribution License, the Eclipse Public
License, the European Union Public Licence, the ServerSide Public License, and
all Creative Commons "sharealike" licenses.
"
Copyleft Materials
" means any Software orcontent subject to a Copyleft License.
"
Corporation
" has the meaning set forth inthe first paragraph of this Agreement.
"
Corporation RSU Plan
" means the TrillerCorp. 2024 Stock Option and Incentive Plan.
"
Corporation RSUs
" means the restricted stockunits held by Corporation employees after giving
effect to the Reorganization.
"
Corporation Stock Certificates
" has themeaning set forth in Section 1.7.4(b).
"
COVID-19
" means the novel coronavirus diseasereferred to as COVID-19.
"
COVID-19 Pandemic
" means the epidemic, pandemic,or disease outbreak associated with COVID-19.
"
Data Protection Laws
" means any and allApplicable Laws that: (a) relate to the collection,
confidentiality, processing, privacy, security, protection, transfer or
cross-borderdata flow of Personal Information, (b) provide rights to an
individual whose Personal Information is being processed; or (c) triggera duty
to notify an individual whose Personal Information has been, or may have been,
the subject of a Security Breach, including (1)the Regulation (EU) 2016/679 of
the European Parliament and of the Council of 27 April 2016 on the protection
of natural persons withregard to the processing of personal data and on the
free movement of such data ("
EU GDPR
"); (2) any implementing,derivative, or related legislation of the Member
State in the European Economic Area or the United Kingdom; (3) the United
Kingdom'sData Protection Act, 2018, (4) the California Consumer Privacy Act ("
CCPA
"),
Cal.Civ. Code
Title 1.81.5 (s) 1798.100 et seq., as amended by the California Privacy Rights
Act ("
CPRA
") (collectively,"
California Privacy Law
"), together with any implementing regulations; (5) the Payment Card Industry
Data SecurityStandards; and (6) any other applicable data protection laws and
regulations in any jurisdiction where the Corporation does business.
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"
Debt
" means, without duplication, (a) allobligations (including the principal
amount thereof or, if applicable, the accreted amount thereof and the amount
of accrued and unpaidinterest thereon) of the Corporation, whether or not
represented by bonds, debentures, notes or other securities (whether or not
convertibleinto any other security), for the repayment of money borrowed,
whether owing to banks, financial institutions, on equipment leases
orotherwise, (b) all deferred indebtedness of the Corporation for the payment
of the purchase price of property or assets purchased (otherthan accounts
payable incurred in the ordinary course of business), (c) all obligations of
the Corporation to pay rent or other paymentamounts under a lease which is
required to be classified as a capital lease or a liability on the face of a
balance sheet prepared inaccordance with GAAP, (d) all outstanding
reimbursement obligations of the Corporation with respect to letters of
credit, bankers'acceptances or similar facilities issued for the account of
the Corporation, (e) all obligations of the Corporation under any interestrate
swap agreement, forward rate agreement, interest rate cap or collar agreement
or other financial agreement or arrangement enteredinto for the purpose of
limiting or managing interest rate risks, (f) all obligations secured by any
Encumbrance existing on propertyowned by the Corporation, whether or not
indebtedness secured thereby will have been assumed, (g) all premiums,
penalties, fees, expenses,breakage costs and change of control payments
required to be paid or offered in respect of any of the foregoing on
prepayment (regardlessif any of such are actually paid), as a result of the
consummation of the Transactions, or in connection with any lender consent,
(h)unpaid current Taxes, and (i) all guaranties, endorsements, assumptions and
other contingent obligations of the Corporation in respectof, or to purchase
or to otherwise acquire, any of the obligations and other matters of the kind
described in any of the clauses (a) through(h) appertaining to third parties.
"
Delaware Parent
" means Parent, after givingeffect to the Domestication.
"
Delaware Parent Adjusted Warrants
" meansthe warrants to be issued by Delaware Parent to the holders of
Corporation Warrants as replacement warrants, as adjusted pursuant to
theirexisting terms.
"
Delaware Parent Bylaws
" has the meaningset forth in Section 1.1(b).
"
Delaware Parent Certificate of Incorporation
"has the meaning set forth in the Preamble.
"
Delaware Parent Common Stock
" means thecommon stock, par value $0.001 per share, of Delaware Parent, into
which the Parent Ordinary Shares shall be converted in the Domestication.
"
Delaware Parent Preferred Stock
" means thepreferred stock, par value $0.001 per share, of Delaware Parent,
which shall be authorized by Delaware Parent in the Domestication.
"
Delaware Parent RSUs
" has the meaning setforth in Section 1.9.
"
Delaware Reorg Certificate
" has the meaningset forth in the Preamble.
"
Delaware Secretary of State
" has the meaningset forth in the Preamble.
"
Delaware Parent Stock
" has the meaning setforth in Section 1.7.4(a).
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6
"
DGCL
" means the Delaware General CorporationLaw, as amended.
"
Disability
" means, with respect to an Employee,a certification by an independent medical
doctor (selected by Parent's health or Disability insurer) that such Employee
has forfour consecutive months been physically or mentally disabled or
incapacitated in a manner that seriously interferes with his or her abilityto
perform his or her essential job responsibilities, and such health condition
has not been cured or treated in such a manner that theprognosis is for no
further Disability.
"
Dissenting Shares
" has the meaning set forthin Section 1.7.5.
"
Domestication
" has the meaning set forthin the Preamble.
"
Domestication Date
" means the date on whichthe Domestication shall be effected.
"
Domestication Intended Tax Treatment
" hasthe meaning set forth in the Preamble.
"
Employee Benefit Plan
" means any retirement,profit sharing, deferred compensation, disability,
death benefit, group health, hospitalization, severance, other welfare, change
of control,retention, equity purchase, equity option, restricted equity,
phantom equity, equity appreciation rights or other equity-based compensation,bo
nus, incentive, fringe benefit or other employee benefit or compensatory plan,
program, policy, practice, Contract, or fund (includingany "employee benefit
plan," as defined in Section 3(3) of ERISA), or any employment, consulting or
personal servicesContract or letter, whether written or oral, funded or
unfunded or domestic or foreign, and whether or not subject to ERISA, (a)
sponsored,maintained or contributed to, or required to be sponsored,
maintained or contributed to, by the Corporation, a Subsidiary or any
ERISAAffiliate or to which the Corporation, Subsidiary or ERISA Affiliate is a
party, (b) covering or benefiting any current or formeremployee, agent,
director, or independent contractor of the Corporation or any Subsidiary or
ERISA Affiliate (or any dependent or beneficiaryof any such individual), or
(c) with respect to which the Corporation or any Subsidiary or ERISA Affiliate
has had, has or couldhave any actual or contingent present or future
obligation or Liability (including with respect to former service providers of
the Corporation,any Subsidiary or ERISA Affiliate or dependent or beneficiary
of any such individual).
"
Encumbrance
" means liens, mortgages, pledges,deeds of trust, security interests, charges,
easements, covenants, restrictions, encumbrances, defect in title, preemptive
right, communityor marital property interest, and other adverse Claims or
interests of any kind.
"
Environmental Laws
" means any ApplicableLaw or Contract relating to (a) health and safety, (b)
pollution, or (c) contamination, protection, or restoration or remediation of
theenvironment or natural resources, including any such Applicable Law or
Contract related to the management or disposal of Hazardous Materials.
"
ERISA
" means the Employee Retirement IncomeSecurity Act of 1974, and all rules and
regulations promulgated thereunder, all as in effect from time to time.
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7
"
ERISA Affiliate
" means any Person that,together with the Corporation or one of its
Subsidiaries, is treated as a single employer under Section 414(b), (c), (m),
or (o) of theCode.
"
Exchange Act
" means the Securities ExchangeAct of 1934, as amended.
"
Exchange Agent
" has the meaning set forthin Section 1.7.4(a).
"
Exploit
" or "
Exploitation
"means to use, possess, reproduce, modify, display, market, offer as a
service, perform, publish, transmit, broadcast, sell, offer to sell,license or
sublicense, distribute, design, develop, manufacture, import, provide, or
otherwise exploit.
"
Final Closing Consideration Spreadsheet
"has the meaning set forth in Section 1.7.3.
"
Financial Statements
" has the meaning setforth in Section 2.5(a).
"
Fraud
" means fraud, intentional breach,intentional misrepresentation, or willful
misconduct.
"
Fundamental Representations
" means the representationsand warranties contained in Sections 2.1, 2.2, 2.3,
and 2.19.
"
GAAP
" means generally accepted accountingprinciples in the United States.
"
Governmental Body
" means any governmentor any agency, arbitrator, board, bureau, commission,
court, department, official, political subdivision, tribunal, or other
instrumentalityof any government, or any self-regulatory or quasi-governmental
body, in each case whether supranational, federal, state or local, domestic,or
foreign.
"
Hazardous Materials
" means any petroleumproducts or byproducts, radioactive or explosive
materials, asbestos or asbestos-containing material, radon gas, urea
formaldehyde, toxicmold or fungi, or polychlorinated biphenyls, and any other
chemicals, substances, waste, or materials that are considered or deemed tobe,
or regulated as, hazardous, toxic, infectious, or dangerous under applicable
Environmental Laws or for which Liability or standardsof conduct may be
imposed pursuant to any Environmental Law.
"
Holder Representative
" has the meaning`set forth in Section 7.1(b).
"
HSR Act
" means the Hart-Scott Rodino AntitrustImprovements Act of 1976, as amended.
"
ICT Infrastructure
" has the meaning setforth in Section 2.10.15(a).
"
Inbound License
" means any Contract pursuantto which the Corporation has the right to Exploit
any Corporation IP for which the Corporation does not own all right, title,
and interest.
"
Initial Closing Consideration Spreadsheet
"has the meaning set forth in Section 1.7.3.
"
Interim Financial Statements
" has the meaningset forth in Section 2.5(a).
"
IRS
" means the United States Internal RevenueService.
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8
"
Knowledge
" means with respect to the Corporation,the knowledge of Bobby Sarnevesht (the
Corporation's Chief Executive Officer), as would reasonably be expected to be
known afterreasonable investigation or inquiry by such Person, including
inquiry of such Person's direct reports.
"
Leases
" has the meaning set forth in Section2.7(b).
"
Legal Proceeding
" means any private, governmental,or administrative action, inquiry, Claim,
counterclaim, proceeding, suit, hearing, litigation, audit, examination or
investigation, ineach case whether civil, criminal, administrative, judicial
or investigative, or any appeal therefrom.
"
Letter of Transmittal
" has the meaning setforth in Section 1.7.4(b).
"
Liability
" means any and all debts, liabilities,Taxes, penalties, expenses, and
obligations of any nature whatsoever, whether accrued or fixed, absolute or
contingent, mature or unmaturedor determined or indeterminable, including
those arising under Applicable Law and those arising under any Contract.
"
Lock-Up
" as to all Delaware Parent CommonStock issued to the Stockholders, other than
to the Unrestricted Shares and to the shares to be issued to the holder of
Delaware ParentPreferred Stock, means the following: holders of Delaware
Parent Common Stock (other than Unrestricted Shares) shall not, subject to
certainlimited exceptions, offer, pledge, sell, contract to sell, grant any
option to purchase, or otherwise dispose of, or to enter into anyhedge or
other arrangement or any transaction that transfers, directly or indirectly,
the economic consequence of ownership of any DelawareParent Common Stock, for
a period of 165 calendar days after the Closing Date; provided, that a
Stockholder may, during the term of theLock-Up, transfer its Delaware Parent
Common Stock to a family member or family trust or to a controlled Affiliate
thereof, subject tothe prior written consent of Delaware Parent (which shall
not be unreasonably withheld, delayed or conditioned and also subject to
thetransferee agreeing in writing to be bound by the terms of the Lock-Up.
As to the holder of Delaware Parent Preferred Stock, the lock-up termsshall be
as set forth as follows: such holder will not sell or be permitted to sell,
register, hypothecate, transfer to common or otherwisetransact ("
Convert
") any of the Delaware Parent Preferred Stock for a period of 12 months from
the Closing Date.Furthermore, after the one year anniversary, such holder will
only be permitted to Convert an amount equal to two percent (2%) of thetotal
number of shares of Delaware Parent Preferred Stock on a monthly basis,
thereafter. Shares converted into Delaware Parent CommonStock shall be free of
any lock-up restrictions.
"
Material AdverseEffect
" as to Parent, the Corporation means (a) any change, event, violation,
inaccuracy, circumstance or effect(each, an "
Effect
") that, individually or taken together with all other Effects, and regardless
of whethersuch Effect constitutes a Breach of any representations or
warranties made by, or a Breach of the covenants, agreements, orobligations
of, such entity, is, or would reasonably be likely to be or become a material
adverse effect on the business,operations, assets, liabilities (absolute,
accrued, contingent, or otherwise), condition (financial or other), or
prospects of suchentity;
provided
that none of the following shall be deemed to constitute, and none of the
following shall be taken intoaccount in determining whether there has been, a
Material Adverse Effect: (i) changes in general economic conditions in the
UnitedStates (and/or, with respect to Parent, Hong Kong and/or the Great Bay
Area of which it is a part, (ii) changes affecting theindustry generally in
which such entity operates, (iii) the outbreak or escalation of war,
hostilities, or terrorist activities,either in the United States or any other
jurisdiction in which such entity operates, or (iv) changes in Applicable Law
or GAAP,unless, in the case of each of the foregoing clauses (i) through (iv),
such changes disproportionately affect such entity ascompared to other Persons
or businesses that operate in the industry in which the Company operates, or
(b) any effect orcircumstance that could reasonably be expected to materially
impair or materially delay the such entity's ability to performunder this
Agreement or the other Operative Documents.
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9
"
Material Contract
" has the meaning set forthin Section 2.11(a).
"
Material Customers
" has the meaning setforth in Section 2.21(a).
"
Merger
" has the meaning set forth in Section 1.2.
"
Merger Consideration
" means an aggregateof 441,620,210 shares of Delaware Parent Stock and
Delaware Parent RSUs, comprised of (i) 299,897,852 shares of Delaware Parent
CommonStock to be paid to the Stockholders in consideration of all outstanding
Common Stock, (ii) 37,702,230 shares of Delaware Parent PreferredStock to be
paid to the Stockholders in consideration of all outstanding Preferred Stock
and (iii) 54,020,128 Delaware Parent RSUs tobe issued in conversion of all
outstanding Corporation RSUs, all as further provided herein.
"
Merger Effective Time
" has the meaning setforth in Section 1.4.
"
Merger Intended Tax Treatment
" has the meaningset forth in the Preamble.
"
Merger Sub
" has the meaning set forth inthe first paragraph of this Agreement.
"
Merger Sub Approval
" has the meaning setforth in Section 2.2(c).
"
NDA
" has the meaning set forth in the recitals.
"
OFAC
" has the meaning set forth in Section2.13(c).
"
Open Source License
" means any license meetingthe Open Source Definition (as promulgated by the
Open Source Initiative) or the Free Software Definition (as promulgated by the
FreeSoftware Foundation), or any substantially similar license, including any
license approved by the Open Source Initiative, or any CreativeCommons
License, and including any adaptation or modification (e.g., adding the
Commons Clause) of or exception to any such license. Forthe avoidance of
doubt, Open Source Licenses include Copyleft Licenses.
"
Open Source Materials
" means any Softwareor content subject to an Open Source License.
"
Operative Document
" and collectively"
Operative Documents
" means each of this Agreement and the other agreements, documents, and
certificatesreferenced in this Agreement to be executed and delivered on the
Agreement Date or prior to or at the Closing, including withoutlimitation all
documents relating to the Reorganization, the Parent Shareholder Voting
Agreement and the Certificate of Merger.
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"
Order
" means any judgment, writ, decree,stipulation, determination, decision,
award, rule, preliminary or permanent injunction, temporary restraining order,
or other order.
"
Outbound License
" means any Contract towhich the Corporation is a party and pursuant to which
any Person is authorized to Exploit any Corporation IP.
"
Parent
" has the meaning set forth in thefirst paragraph of this Agreement and, where
the contest requires, also refers to Delaware Parent as of the effectiveness
of the Domestication.
"
Parent Disclosure Memorandum
" has the meaningset forth in the first paragraph of Article III.
"
Parent Entity
" means any of Parent (priorto the Domestication Date), Delaware Parent (as of
the Domestication Date), an Affiliate of either such entity that is not an
individual,a successor of thereof, or another Person designated by one of the
foregoing (including the Surviving Corporation).
"
Parent Equity Plan
" means Parent'scurrently effective Share Award Scheme.
"
Parent August 2024 Draft 14A
" means thesections of the draft proxy statement filed by Parent with the SEC
on August 14, 2024 that describe the business, financial conditionand risk
factors of and/or relating to the Corporation.
"
Parent Ordinary Shares
" means the ordinaryshares, par value $0.001 per share, of Parent.
"
Parent Proxy Statement
" has the meaningset forth in Section 4.13.
"
Parent Public Filings
" means all of Parent'sand Delaware Parent's SEC filings made on its EDGAR
system.
"
Parent Shareholder Meeting
" has the meaningset forth in Section 4.13.
"
Parent Transaction Proposals
" means theTransactions that require approval by Parent.
"
Parent Transactions
" means the Transactions,other than the Reorganization.
"
Permitted Encumbrances
" means (a) conditionalsales or similar security interests granted in
connection with the purchase of equipment or supplies in the ordinary course
of businessand consistent with past practice, (b) assessments for current
Taxes not yet due and payable, or (c) statutory liens securing indebtednessowed
by the Corporation that is in the aggregate less than $25,000, which was
incurred in the ordinary course of business and consistentwith past practice
and is not yet due and payable.
"
Person
" means anyindividual, proprietorship, firm, company, syndicate, corporation,
partnership, trust, joint venture, limited liability company,association,
committee, organization, other entity, Governmental Body, any organization or
group of persons acting in concert, orregulatory authority.
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"
Personal Information
" means (a) allinformation that identifies, relates to, describes, is
reasonably capable of being associated with, or could reasonably be linked,
directlyor indirectly, with a particular individual; and (b) any other
information that is protected as personal information under Data ProtectionLaws,
including precise geolocation data, inferences drawn from personal
information to create a profile, or any other data that may beused to
identify, contact, or precisely locate an individual.
"
Policies
" has the meaning set forth in Section2.18.
"
Preferred Per Share Merger Consideration
"means one share of Delaware Parent Preferred Stock, to be paid as
consideration for each full share of Preferred Stock.
"
Preferred Stock
" means the Series A-1 PreferredStock to be issued in connection with the
Reorganization.
"
Pro Rata Share
" means, with respect to aparticular Stockholder, a fraction equal to (a) the
portion of the Merger Consideration that such Stockholder is entitled to be
paid pursuantto Section 1.7.1 (before any deductions or withholdings
contemplated by this Agreement), divided by (b) the aggregate Merger
Considerationthat all Stockholders are entitled to be paid pursuant to Section
1.7.1 (before any deductions or withholdings contemplated by this Agreement).
"
Processing
" (and the correlative meaningsof "
Process
" and "
Processes
") refers to the receipt, collection, sharing, selling,disclosing,
transferring, renting, retrieval, consultation, analysis, combination,
accessing, storage, use, security, transfer, restriction,destruction, or other
processing or operations or set of operations, whether or not by automated
means.
"
Real Property
" has the meaning set forthin Section 2.7(b).
"
Related Party Contract
" has the meaningset forth in Section 2.17.
"
Registrar
" has the meaning set forth inthe Preamble.
"
Reorganization
" means the reorganizationof Triller LLC into the Corporation at the Reorg
Effective Time.
"
Representatives
" has the meaning set forthin Section 4.6(a).
"
Required Actions
" has the meaning set forthin Section 4.2(a).
"
Reserved Shares
" has the meaning set forthin Section 1.8.
"
SEC
" means the U.S. Securities and ExchangeCommission.
"
Securities Act
" means the U.S. SecuritiesAct of 1933, as amended.
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"
Security Breach
" means any misuse, compromiseor unauthorized access, destruction, loss,
alteration, acquisition or disclosure of any Personal Information or
Corporation confidentialinformation.
"
Series A Common Stock
" means the Corporation'sSeries A Common Stock, par value $0.0001 per share,
to be issued in connection with the Reorganization.
"
Series B Common Stock
" means the Corporation'sSeries B Common Stock, par value $0.0001 per share,
to be issued in connection with the Reorganization.
"
Software
" means any and all computer programs,software, and code, including all new
versions, updates, revisions, improvements, and modifications thereof, whether
in source code, objectcode, or executable code format, including systems
software, application software (including mobile apps), firmware, middleware,
developmenttools, scripts, routines, interfaces, libraries, and databases, and
all specifications and documentation, including programmer notes,comments and
annotations, user interfaces, "look and feel," and training materials relating
to any of the foregoing.
"
Source Code
" means the human readable sourcecode for any Software that is part of the
Corporation IP as well as any confidential or proprietary information relating
to any Softwaresource code or any of the Corporation IP.
"
Standards Organization
" has the meaningset forth in Section 2.10.13.
"
Stock
" means, collectively, CorporationCommon Stock and Preferred Stock.
"
Stockholder
" means a holder of shares ofStock as of the Reorganization.
"
Stockholder Approval
" has the meaning setforth in Section 2.2(b).
"
Subsidiary
" means, with respect to a Person,any corporation or other organization
(including a limited liability company or a general or limited partnership),
whether incorporatedor unincorporated, of which such Person directly or
indirectly owns or controls a majority of the securities or other interests
havingby their terms ordinary voting power to elect a majority of the board of
directors or others performing similar functions with respectto such
corporation or other organization or any organization of which such Person or
any of its Subsidiaries is, directly or indirectly,a general partner or
managing member.
"
Surviving Corporation
" has the meaning setforth in Section 1.2.
"
Surviving Corporation Bylaws
" has the meaningset forth in Section 1.5.
"
Surviving Corporation Certificate of Incorporation
"has the meaning set forth in Section 1.5.
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"
Tax
" (and,correlative meaning, "
Taxes
" or "
Taxable
") means any and all (a) domestic orforeign, federal, state, or local taxes,
charges, fees, levies, imposts, escheat for unclaimed property, duties and
governmentalfees, or other like assessments or charges of any kind whatsoever,
including income taxes (whether imposed on or measured by netincome, gross
income, income as specially defined, earnings, profits, or selected items of
income, earnings, or profits), capitaltaxes, gross receipts taxes,
environmental taxes, sales taxes, use taxes, value added taxes, goods and
services taxes, transfertaxes, franchise taxes, license taxes, withholding
taxes or other withholding obligations, payroll taxes, employment taxes,
excisetaxes, severance taxes, social security premiums, workers' compensation
premiums, employment insurance or compensationpremiums, stamp taxes,
occupation taxes, premium taxes, ad valorem taxes, property taxes, windfall
profits taxes, alternative oradd-on minimum taxes, and customs duties, (b)
interest, penalties, fines, additions to tax, or additional amounts imposed by
any TaxAuthority in connection with (i) any item described in clause (a) or
(ii) the failure to comply with any requirement imposed withrespect to any Tax
Returns, (c) any liability in respect of any items described in clause (a) or
clause (b) that is incurred byreason of being (or ceasing to be) a member of
an affiliated, consolidated, combined, unitary, or aggregate group for any
Taxableperiod, and (d) liabilities in respect of any items described in clause
(a) or clause (b) payable by reason of Contract, assumption,transferee
liability, operation of law, or otherwise.
"
Tax Authority
" means any Governmental Bodyhaving jurisdiction with respect to any Tax.
"
Tax Return
" means any return, informationreturn, declaration, claim for refund of Taxes,
report or any similar statement, and any amendment thereto, including any
attached scheduleand supporting information, whether on a separate,
consolidated, combined, unitary or other basis, that is filed or required to
be filedwith any Taxing Authority in connection with the determination,
assessment, collection or payment of a Tax or the administration of
anyApplicable Law relating to any Tax..
"
Technology
" means all products, tools, devices,prototypes, systems, mask works, computer
programs, software, hardware, source code, object code, development tools,
techniques, concepts,know-how, algorithms, methods, processes, procedures,
formulae, designs, drawings, customer lists, supplier lists, databases, data
collections,data compilations, information (including proprietary information
and confidential information), specifications, brands, logos, marketingmaterials
, user interfaces, websites, specifications, programmer notes, specifications,
packaging, trade dress, content, graphics, artwork,audiovisual works, images,
photographs, literary works, performances, music, sounds, content, user
interfaces, "look and feel,"inventions (whether or not patentable), invention
disclosures, discoveries, works of authorship (whether or not copyrightable),
designs,and other technology and tangible items related to, constituting,
disclosing, or embodying any or all of the foregoing, including anyand all
versions of any and all of the foregoing.
"
Third-Party IP
" means any Corporation IPfor which the Corporation does not own all right,
title, and interest and which is licensed to the Corporation under an Inbound
License.
"
Third-Party Processor
" has the meaning setforth in Section 2.10.11(b).
"
Third-Party Vendor
" has the meaning setforth in Section 2.21(b).
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14
"
TransactionCosts
" means all fees, costs, and expenses incident to the negotiation,
preparation, and execution of this Agreementand the other Operative Documents,
and the consummation of the Transactions, including, in the case of the
Corporation, (a) anychange-in-control costs, any success fees, any bonuses,
compensation, severance, or other payments to the Corporation ServiceProviders
or Affiliates triggered or accelerated by the Transactions (including the
employer portion of any related employment Taxesimposed on such amounts),
regardless of whether such payments are made prior to, at, or following the
Closing, but excluding in allcases Parent's post-Closing compensation packages
for its employees, (b) the Corporation's portion of applicable payrollTaxes
resulting from the payment of the Merger Consideration, (c) any fees and
expenses of the Corporation's attorneys,accountants, financial advisors, and
other advisors, and (d) any Transfer Taxes.
"
Transaction Proposals
" has the meaning setforth in Section 4.13.
"
Transactions
" means the Reorganization,the Merger and the other transactions contemplated
by this Agreement and the Operative Documents.
"
Transfer Taxes
" means any and all transfer,documentary, sales, use, stamp, registration,
value added, recording, and other similar Taxes and fees arising in connection
with theTransactions (including any penalties and interest), together with any
costs or expenses incurred by Parent or its Affiliates in the preparingand
filing of any related Tax Returns or documents.
"
Treasury Regulations
" shall mean the Treasuryregulations promulgated under the Code, as such
Treasury Regulations may be amended from time to time. Any reference herein to
a particularprovision of the Treasury Regulations means, where appropriate,
the corresponding successor provision.
"
Triller LLC
" has the meaning set forth inthe Preamble.
"
Triller LLC 2024 S-1
" means Amendment No.5 to Triller LLC's Form S-1 Registration Statement under
the Securities Act (Registration No. 333-273623) which was filed with theSEC
on January 29, 2024.
"
Unrestricted Shares
" means the DelawareParent Common Stock that will be issued to Unrestricted
Shareholders, free of the Lock-Up, and as shown on
Exhibit J
.
"
Unrestricted Stockholder
" means those Stockholdersthat will be issued Unrestricted Shares in the
Merger, as further provided on
Exhibit J
.
"
WARN Act
" has the meaning set forth in Section2.8(e).
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15
Annexes
:
Annex A - Definitions
Annex B - Initial Closing Consideration Spreadsheet
Exhibits:
Exhibit A - Delaware Reorg Certificate
Exhibit B - Certificate of Domestication
Exhibit C - Delaware Parent Certificate of Incorporation
Exhibit D - Super Voting Agreement
Exhibit E - Delaware Parent Bylaws
Exhibit F - Certificate of Merger
Exhibit G - Surviving Corporation Certificate of Incorporation
Exhibit H - Surviving Corporation Bylaws
Exhibit I - FIRPTA Certificate
Exhibit J - Unrestricted Stockholders
Exhibit 10.1
LOEB 30AUGUST2024
AGREED EXECUTION VERSION(2)
VOTING AGREEMENT
by and among
TRILLER INC.
and
THE PARTY EXECUTING THIS AGREEMENT AS THE STOCKHOLDER
Dated as ofSeptember [*], 2024
VOTING AGREEMENT
This VOTING AGREEMENT (this"
Agreement
") is entered into as of September [*], 2024, by and among TRILLER INC. (the "
Company
")and
GREEN NATURE LIMITED
(the "
Stockholder
").
WHEREAS, the Stockholder holds37,496 shares of the Company's Series B
Preferred Stock, which entitles the holder thereof to 10,000 votes per share
(the "
SubjectShares
");
WHEREAS, the Company and theStockholder wish to provide for the orderly voting
of Shares on certain matters specified in this Agreement.
NOW, THEREFORE, in considerationof the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the partieshereto, intending to be legally bound, agree as
follows:
ARTICLE I.
VOTING AGREEMENT AND IRREVOCABLE PROXY
Section 1.1 Agreementto Vote
. The Stockholder hereby agrees that at any duly called meeting of the
stockholders of the Company (or any adjournment orpostponement thereof), or in
any other circumstances where a vote of stockholders of the Company is to be
taken (including action bywritten consent of stockholders of the Company in
lieu of a meeting), from the date hereof until December 31, 2025, the
Stockholdershall, if a meeting is held, appear at the meeting, in person or by
proxy, and shall provide a written consent or vote (or cause tobe voted), in
person or by proxy, all of the Subject Shares held beneficially or of record
by the Stockholder.
(a) FORthe election of Bobby Sarnevesht as a director of the Company;
(b) AGAINSTany proposal which would result in Bobby Sarnevesht being removed
or replaced as a director of the Company;
(c) AGAINSTany proposal which is inconsistent with the terms contained in the
Amended and Restated Agreement and Plan of Merger, dated as of August30, 2024,
by and among AGBA Group Holding Limited, AGBA Social Inc., Triller Corp. and
the Holder Representative (the "
MergerAgreement
"); and
(d) AGAINSTany proposal which would have an adverse, prejudicial or negative
effect on the owners of "Stock" of Triller Corp. existingprior to the
"Effective Time" (as each such term is defined in the Merger Agreement), vis a
vis any other stockholder of theCompany.
ARTICLE II.
COVENANTS
Section 2.1 Transferof Subject Shares
. Nothing contained herein shall be deemed to limit or restrict the ability of
the Stockholder to sell, assign, transferor convey the Subject Shares or to
pledge, margin or otherwise encumber (a "
Pledge
") the Subject Shares.
(a) Uponthe sale of any Shares that constitute Subject Shares through the
facilities of a national securities exchange, such Shares shall ceasebeing
Subject Shares.
(b) Uponthe bona fide Pledge of any Shares that constitute Subject Shares,
such Shares shall be released from this Agreement, to the extent, andonly to
the extent, required by the terms of such Pledge.
2
(c) Uponany other sale, assignment, transfer, conveyance or Pledge of Shares
that constitute Subject Shares (including, but not limited to, asale by the
Stockholder's trustee in bankruptcy, or a sale to a purchaser at any
creditor's or court sale), the transferee(which term, as used herein, shall
include any and all transferees and subsequent transferees of the initial
transferee) shall take andhold such Subject Shares subject to all of the
restrictions, liabilities and rights under this Agreement, which shall
continue in fullforce and effect.
Section 2.2Additional Subject Shares
.
(a) Inthe event of a stock dividend or distribution, or any change in the
Subject Shares by reason of any stock dividend or distribution, split-up,recapit
alization, combination, conversion, exchange of shares or the like, the term
"Subject Shares" shall be deemed to referto and include the Subject Shares as
well as all such stock dividends and distributions and any securities into
which or for which anyor all of the Subject Shares may be changed or exchanged
or which are received in such transaction.
(b) TheStockholder further agrees that, in the event Stockholder purchases or
otherwise acquires beneficial or record ownership of or an interestin, or
acquires the right to vote or share in the voting of, any additional shares of
Series B Preferred Stock, in each case after theexecution of this Agreement,
the Stockholder shall deliver promptly to the Company written notice of such
event, which notice shall statethe number of additional Shares so acquired.
The Stockholder agrees that any such additional Shares shall be subject to the
terms of thisAgreement, including all covenants, agreements, obligations,
representations and warranties set forth herein as if those additional
shareswere owned by the Stockholder on the date of this Agreement.
Section 2.3 Stockholder'sCapacity
. All agreements and understandings made herein shall be made solely in the
Stockholder's capacity as a holder of theSubject Shares and not in any other
capacity. Nothing herein shall limit or affect Stockholder's ability to act as
an officer ordirector of the Company or its subsidiaries.
Section 2.4 No InconsistentAgreements
. Stockholder agrees that it will not, nor will it permit any entity under its
control to, deposit any of its Subject Sharesin a voting trust or subject any
of its Subject Shares to any arrangement with respect to the voting of such
Subject Shares other thanas provided herein.
Section 2.5 FurtherActions
. Subject to the terms and conditions set forth in this Agreement, Stockholder
agrees to take any all actions and to do allthings reasonably necessary or
appropriate to effectuate this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby representsand warrants to the Company as follows:
Section 3.1 Due Authorization
.Stockholder has all necessary power and authority to execute and deliver this
Agreement and to consummate the transactions contemplatedhereby; and (b) the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by Stockholderhave been duly authorized by
all necessary action on the part of Stockholder and no other proceedings on
the part of Stockholder are necessaryto authorize this Agreement, or to
consummate the transactions contemplated hereby.
Section 3.2 Enforceability
.This Agreement has been duly executed and delivered by Stockholder and
(assuming the due authorization, execution and delivery by theCompany)
constitutes a valid and binding obligation of Stockholder, enforceable against
Stockholder in accordance with its terms, exceptto the extent enforcement is
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar Laws of generalapplicability relating to or affecting
creditors' rights and by general equitable principles.
Section 3.3 Ownershipof Shares
.
Schedule I
hereto sets forth opposite Stockholder's name the Subject Shares over which
Stockholder has solerecord and beneficial ownership as of the date hereof.
Stockholder has good and valid title to the Subject Shares denoted as being
ownedby Stockholder on
Schedule I
hereto, free and clear of any and all pledges, mortgages, liens, charges,
proxies, voting agreements,encumbrances, adverse claims, options, security
interests and demands of any nature or kind whatsoever, other than (i) those
created bythis Agreement, or (ii) those existing under applicable securities
laws.
3
Section 3.4 No Conflicts
.(a) No filing with any governmental entity, and no authorization, consent or
approval of any other person is necessary for the executionof this Agreement
by Stockholder and (b) none of the execution and delivery of this Agreement by
Stockholder, the consummation by Stockholderof the transactions contemplated
hereby or compliance by Stockholder with any of the provisions hereof: (i) if
Stockholder is an entity,conflict with or result in any breach of the
organizational documents of Stockholder, (ii) result in, or give rise to, a
violation orbreach of or a default under any of the terms of any material
contract, understanding, agreement or other instrument or obligation towhich
Stockholder is a party or by which Stockholder or any of the Subject Shares
may be bound or (iii) violate any applicable order,writ, injunction, decree,
judgment, statute, rule or regulation, except for any of the foregoing as
would not reasonably be expected toimpair Stockholder's ability to perform its
obligations under this Agreement.
Section 3.5 No Litigation
.As of the date of this Agreement, there is no claim or proceeding pending or,
to the knowledge of Stockholder, threatened against Stockholderthat would
reasonably be expected to impair the ability of Stockholder to perform its
obligations hereunder or consummate the transactionscontemplated hereby.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby representsand warrants to Stockholder as follows:
Section 4.1 Due Organization,etc
. The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. TheCompany has all necessary
limited liability power and authority to execute and deliver this Agreement
and to consummate the transactionscontemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby by theCompany have been duly authorized by all necessary
action on the part of the Company and no other proceedings on the part of the
Companyare necessary to authorize this Agreement, or to consummate the
transactions contemplated hereby. This Agreement has been duly executedand
delivered by the Company and (assuming the due authorization, execution and
delivery by Stockholder) constitutes a valid and bindingobligation of the
Company, enforceable against the Company in accordance with its terms, except
to the extent enforcement is limited bybankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affectingcreditors' rights and by general equitable principles.
Section 4.2 No Conflicts
.(a) No filing with any governmental entity, and no authorization, consent or
approval of any other person is necessary for the executionof this Agreement
by the Company and (b) none of the execution and delivery of this Agreement by
the Company, the consummation by theCompany of the transactions contemplated
hereby or compliance by the Company with any of the provisions hereof shall
(i) conflict withor result in any breach of the organizational documents of
the Company, (ii) result in, or give rise to, a violation or breach of or
adefault under any of the terms of any material contract, understanding,
agreement or other instrument or obligation to which the Companyis a party or
by which the Company or any of its assets may be bound or (iii) violate any
applicable order, writ, injunction, decree,judgment, statute, rule or
regulation, except for any of the foregoing as would not reasonably be
expected to materially impair the Company'sability to perform its obligations
under this Agreement.
ARTICLE V.
TERMINATION
Section 5.1 Termination
.This Agreement shall terminate and be of no further force and effect upon the
first to occur of: (a) the written notice of terminationby the Company; and
(b) December 31, 2025. Termination of this Agreement shall not excuse a party
for breach of this Agreement occurringprior to such termination.
4
ARTICLE VI.
MISCELLANEOUS
Section 6.1 Fees andExpenses
. Except as otherwise specifically provided herein, each party shall bear its
own expenses in connection with this Agreementand the transactions
contemplated hereby.
Section 6.2 Amendments,Waivers, etc
. This Agreement may not be amended or waived with respect to a party without
the express written consent of the partyto be bound by such amendment or
waiver.
Section 6.3 Notices
.Any notice, request, instruction or other document required to be given
hereunder shall be sufficient if in writing, and sent by confirmedfacsimile or
electronic mail transmission of a "portable document format" (".pdf")
attachment (provided that anynotice received by facsimile or electronic mail
transmission or otherwise at the addressee's location on any business day
after5:00 p.m. (addressee's local time) shall be deemed to have been received
at 9:00 a.m. (addressee's local time) on the nextbusiness day), by reliable
overnight delivery service (with proof of service), hand delivery or certified
or registered mail (return receiptrequested and first-class postage prepaid),
addressed as follows:
If to the Company, to
Triller Group Inc.
AGBA Tower
68 Johnston Road
Wan Chai, Hong Kong SAR
Attention: Wing-Fai Ng
with a copy to (which shall not constitute notice):
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
Attention: Lawrence Venick, Esq.t
Email:
lvenick@loeb.com
If to Stockholder, to the address set forth onits signature page hereto;
or to such other person or address as any partyshall specify by written notice
so given, and such notice shall be deemed to have been delivered as of the
date so telecommunicated, personallydelivered or mailed. Any party to this
Agreement may notify any other party of any changes to the address or any of
the other detailsspecified in this paragraph;
provided
that such notification shall only be effective on the date specified in such
notice or five(5) business days after the notice is given, whichever is later.
Rejection or other refusal to accept or the inability to deliver becauseof
changed address of which no notice was given shall be deemed to be receipt of
the notice as of the date of such rejection, refusalor inability to deliver.
Section 6.4 Headings
.Headings of the Articles and Sections of this Agreement are for convenience
of the parties only, and shall be given no substantive orinterpretive effect
whatsoever.
Section 6.5 Severability
.The provisions of this Agreement shall be deemed severable and the invalidity
or unenforceability of any provision shall not affect thevalidity or
enforceability of the other provisions hereof. If any provision of this
Agreement, or the application of such provision toany person or any
circumstance, is invalid or unenforceable (a) a suitable and equitable
provision shall be substituted therefor in orderto carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainderof this Agreement and the application of such
provision to other persons or circumstances shall not be affected by such
invalidity orunenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the applicationof
such provision, in any other jurisdiction.
5
Section 6.6 Entire Agreement;Assignment
. This Agreement constitutes the entire agreement, and supersedes all other
prior agreements and understandings, both writtenand oral, between the
parties, or any of them, with respect to the subject matter hereof. Neither
this Agreement nor any of the rights,interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of law or
otherwise) without theprior written consent of the other parties. Subject to
the preceding two sentences, this Agreement will be binding upon, inure to
thebenefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns. Notwithstanding anything tothe contrary set
forth herein, Stockholder agrees that, to the extent set forth in
Section 2.1
, this Agreement and the obligationshereunder shall be binding upon any Person
to which record or beneficial ownership of Stockholder's Subject Shares shall
pass, whetherby operation or law or otherwise, including Stockholder's heirs,
guardians, administrators or successors and assigns, and Stockholderagrees to
take all actions necessary to effect the foregoing.
Section 6.7 Partiesin Interest
. This Agreement shall be binding upon and inure solely to the benefit of each
party hereto, and nothing in this Agreement,express or implied, is intended to
or shall confer upon any other Person any rights, benefits or remedies of any
nature whatsoever underor by reason of this Agreement, including, without
limitation, the right to rely upon the representations and warranties set
forth herein.The representations and warranties in this Agreement are the
product of negotiations among the parties hereto and are for the sole
benefitof the parties hereto.
Section 6.8 Interpretation
.When a reference is made in this Agreement to an Article or Section, such
reference shall be to an Article or Section of this Agreementunless otherwise
indicated. Whenever the words "include," "includes" or "including" are used in
thisAgreement, they shall be deemed to be followed by the words "without
limitation." The words "hereof," "herein"and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not toany particular provision of this Agreement. All terms defined in
this Agreement shall have the defined meanings when used in any certificateor
other document made or delivered pursuant thereto unless otherwise defined
therein. The definitions contained in this Agreement areapplicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter gendersof such term. Any agreement,
instrument or statute defined or referred to herein or in any agreement or
instrument that is referred toherein means such agreement, instrument or
statute as from time to time amended, modified or supplemented in accordance
with the termshereof, including (in the case of agreements or instruments) by
waiver or consent and (in the case of statutes) by succession of comparablesucce
ssor statutes and references to all attachments thereto and instruments
incorporated therein. References to a person are also toits permitted
successors and assigns. Each of the parties has participated in the drafting
and negotiation of this Agreement. If an ambiguityor question of intent or
interpretation arises, this Agreement must be construed as if drafted by all
the parties and no presumption orburden of proof shall arise favoring or
disfavoring any party by virtue of authorship of any of the provisions of this
Agreement. Referencesto dollars or "US$" are to the official currency of the
United States of America.
Section 6.9 GoverningLaw
. THIS AGREEMENT AND ALL QUESTIONS RELATING TO THE INTERPRETATION OR
ENFORCEMENT OF THIS AGREEMENT SHALL BE DEEMED TO BE MADE INAND IN ALL RESPECTS
SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW
OF THE STATE OF DELAWARE WITHOUT REGARDTO THE CONFLICTS OF LAW PRINCIPLES
THEREOF TO THE EXTENT THAT SUCH PRINCIPLES WOULD DIRECT A MATTER TO ANOTHER
JURISDICTION.
Section 6.10 SpecificPerformance
. Stockholder acknowledges that any breach of this Agreement would give rise
to irreparable harm for which monetary damageswould not be an adequate remedy
and the Company shall be entitled to a decree of specific performance and to
temporary, preliminary andpermanent injunctive relief to prevent breaches or
threatened breaches of any of the provisions of this Agreement, without the
necessityof proving the inadequacy of monetary damages as a remedy.
6
Section 6.11 Submissionto Jurisdiction
. The parties hereby irrevocably submit to the exclusive personal jurisdiction
of the Court of Chancery of the Stateof Delaware, or, if the Chancery Court
declines jurisdiction, the United States District Court for the District of
Delaware or the courtsof the State of Delaware solely in respect of the
interpretation and enforcement of the provisions of this Agreement and hereby
waive,and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof, that it is not subjectthereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof maynot be appropriate or that this
Agreement may not be enforced in or by such courts, and the parties hereto
irrevocably agree that allclaims relating to such action, suit or proceeding
shall be heard and determined in such courts. The parties hereby consent to
and grantany such court jurisdiction over the person of such parties and, to
the extent permitted by law, over the subject matter of such disputeand agree
that mailing of process or other papers in connection with any such action or
proceeding in the manner provided in
Section6.3
or in such other manner as may be permitted by law shall be valid and
sufficient service thereof.
Section 6.12 Waiverof Jury Trial
. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATEDAND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIALBY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATEDBY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED,EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH
PARTYUNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii)
EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HASBEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS
SECTION 6.12
.
Section 6.13 Counterparts
.This Agreement may be executed in two or more counterparts (including by
facsimile transmission or other means of electronic transmission,such as by
electronic mail in "pdf" form), each of which shall be an original, with the
same effect as if the signatures theretoand hereto were upon the same
instrument, and shall become effective when one or more counterparts have been
signed by each of the partiesand delivered (by facsimile or otherwise) to the
other parties.
Section 6.14 Relationshipof the Parties
. This Agreement has been negotiated on an arm's length basis between the
parties and is not intended to createa partnership, joint venture or agency
relationship between the parties.
7
IN WITNESS WHEREOF, the partieshave caused this Agreement to be duly executed
as of the day and year first above written.
TRILLER GROUP INC.
By:
Name: Bobby Sarnevesht
Title: Interim Chief Executive Officer
[Signature Page to Voting Agreement]
8
IN WITNESS WHEREOF, the undersignedhas executed this Voting Agreement as a
Stockholder as of the day and year first above written.
STOCKHOLDER:
Green Nature Limited
By:
Name: Valerie Chen
Title: Director
[Signature Page to Voting Agreement]
9
Schedule I
Ownership of Subject Shares
Name and Address of Stockholder Number of
Super Voting Shares
GIANT WISDOM VENTURES [*]
[Address]
10
Exhibit 99.1
AGBAAND TRILLER ANNOUNCE
AMENDED AND RESTATED MERGER AGREEMENT
Upon transaction closing, the newly combined companies will trade on theNasdaq
under the name "Triller Group Inc." with new expected ticker "ILLR"
Transaction closing is anticipated to occur soon, subject to regulatoryclearance,
approval by AGBA's shareholders and other customary closing conditions
Merger will create a cutting-edge, next-generation, social media and entertainmentplatform
for creators and users, powered by AI and machine-learning technologies
LOS ANGELES, Sept. 03, 2024 (GLOBE NEWSWIRE)--
AGBA Group Holding Limited (Nasdaq: AGBA) ("AGBA"), a multi-channel business
platform delivering first-class financialservices through machine-learning
technologies, and Triller Corp. ("Triller"), a next generation, AI-powered,
social mediaand live-streaming event platform, today announced that on August
30, 2024, the parties amended and restated their April 16, 2024 mergeragreement
("Merger Agreement"). This amended and restated Merger Agreement supersedes
the original merger agreement betweenAGBA and Triller.
In accordance with the Merger Agreement, AGBA will domesticate to theU.S.
("AGBA Domestication") as a Delaware corporation ("AGBA Delaware Parent") and
all AGBA ordinary shares, parvalue $0.001 per share, will automatically
convert into the same number of shares of AGBA Delaware Parent upon successful
AGBA Domesticationand Delaware incorporation. Once the Triller Reorganization
and the AGBA Domestication have occurred, the combined companies will
merge(the "Merger") and Triller will become a wholly owned subsidiary of AGBA
Delaware Parent. Upon successful closing of the transaction,AGBA Delaware
Parent will change its name to "Triller Group Inc." and the newly combined
companies will operate under theTriller company name and expect to be traded
on the Nasdaq under the ticker "ILLR".
The merger consideration provided for in the Merger Agreement (the"Merger
Consideration") will be as follows: AGBA Delaware Parent (i) will issue
299,897,852 shares of AGBA Delaware ParentCommon Stock to the current common
stockholders of Triller, (ii) will issue 37,702,230 shares of preferred stock
to the current preferredstockholders of Triller (the holders of Triller's
common and preferred stock are referred to together as the "Stockholders"),and
(iii) will convert all existing Triller restricted stock units into 54,020,128
AGBA Delaware Parent restricted stock units; and AGBADelaware Parent also will
reserve an aggregate of 54,020,128 shares of AGBA Delaware Parent Common Stock
for future issuance upon thevesting of such restricted stock units. A total of
50,000,000 shares of AGBA Delaware Parent Common Stock will be held in escrow
as reservedshares, which will be applied toward future settlement of certain
Triller legal and financial obligations.
AGBA and Triller have agreed that the closing of the Merger (the "Closing")will
occur as soon as possible, subject to regulatory clearance, approval by AGBA's
shareholders and the other closing conditionsprovided for in the Merger
Agreement and summarized in the accompanying 8-K U.S. Securities and Exchange
("SEC") filing.
For more details, please refer to AGBA's Report on Form 8-K filedwith the SEC
on September 3, 2024. The latest press release is available on the company's
website, please visit: www.agba.com/ir
.
About AGBA:
Established in 1993, AGBA Group Holding Limited (Nasdaq: "AGBA")is a leading,
multi-channel business platform that incorporates cutting edge machine-learning
and offers a broad set of financial servicesand healthcare products to
consumers through a tech-led ecosystem, enabling clients to unlock the choices
that best suit their needs.Trusted by over 400,000 individual and corporate
customers, the Group is organized into four market-leading businesses:
Platform Business,Distribution Business, Healthcare Business, and Fintech
Business.
For more information, please visit www.agba.com
About Triller:
Triller is a next generation, AI-powered, social media and live-streamingevent
platform for creators. Pairing music culture with sports, fashion,
entertainment, and influencers through a 360-degree view of contentand
technology, Triller uses proprietary AI technology to push and track content
virally to affiliated and non-affiliated sites and networks,enabling them to
reach millions of additional users. Triller additionally owns Triller Sports,
Bare-Knuckle Fighting Championship (BKFC);Amplify.ai, a leading machine-learning
, AI platform; FITE, a premier global PPV, AVOD, and SVOD streaming service;
and Thuzio, a leaderin B2B premium influencer events and experiences.
For more information, visit www.triller.co
Investor Relations:
Bethany Lai
ir@agba.com
+852-5529-4500
Media Contact:
Catherine Polisi Jones
Polisi Jones Communications
cjones@polisijones.com
+1-917-330-8934
Additional Information About the Proposed Merger and Where toFind It
In connection with the Merger Agreement and the proposed Merger, AGBAintends
to file relevant materials with the SEC, including a proxy statement, which
will be mailed or otherwise disseminated to the shareholdersof AGBA as of the
record date established for voting on the proposed transactions contemplated
by the Merger Agreement. AGBA may alsofile other relevant documents regarding
the proposed Merger with the SEC. THIS PRESS RELEASE DOES NOT CONTAIN ALL THE
INFORMATION THATSHOULD BE CONSIDERED CONCERNING THE PROPOSED MERGER AND IS NOT
INTENDED TO FORM THE BASIS OF ANY INVESTMENT DECISION OR ANY OTHER DECISIONIN
RESPECT OF THE MERGER. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION,
INVESTORS AND SECURITY HOLDERS OF AGBA ARE URGED TO READ THEDEFINITIVE PROXY
STATEMENT AND ALL OTHER RELEVANT DOCUMENTS THAT ARE FILED OR WILL BE FILED
WITH THE SEC IN CONNECTION WITH THE PROPOSEDMERGER AS THEY BECOME AVAILABLE,
INCLUDING ANY AMENDMENTS OR SUPPLEMENTS TO THESE DOCUMENTS, CAREFULLY AND IN
THEIR ENTIRETY, BECAUSETHEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE
PROPOSED MERGER.
2
Investors and security holders may obtain free copies of the definitiveproxy
statement (if and when available) and other documents that are filed or will
be filed with the SEC by AGBA through the website maintainedby the SEC at
www.sec.gov. Copies of the documents filed with the SEC by AGBA will be
available free of charge at: AGBA Group HoldingLimited, AGBA Tower, 68
Johnston Road, Wan Chai, Hong Kong SAR, attention: Mr. Ng Wing Fai, Chief
Executive Officer.
Participants in Solicitation
AGBA and Triller, and their respective directors and executive officers,may be
deemed participants in the solicitation of proxies from AGBA's shareholders in
respect of the proposed Merger. AGBA'sshareholders and other interested
persons may obtain more detailed information about the names and interests of
these directors and officersin AGBA's proxy statement, when it is filed with
the SEC. Information about AGBA's directors and executive officers and
theirownership of AGBA ordinary shares is set forth in AGBA's annual report on
Form 10-K, filed with the SEC on March 28, 2024. Thesedocuments can be
obtained free of charge from the sources specified above and at the SEC's web
site at www.sec.gov.
No Offer or Solicitation
This press release is not a proxy statement or solicitation of a proxy,consent
or authorization with respect to any securities or in respect of the
transactions described above and shall not constitute anoffer to sell or a
solicitation of an offer to buy the securities of AGBA or Triller, nor shall
there be any sale of any such securitiesin any state or jurisdiction in which
such offer, solicitation, or sale would be unlawful prior to registration or
qualification underthe securities laws of such state or jurisdiction. No
offering of securities shall be made except by means of a prospectus meeting
therequirements of Section 10 of the Securities Act of 1933, as amended, or an
exemption therefrom.
Forward-Looking Statements
This press release contains certain "forward-looking statements"within the
meaning of the Securities Act of 1933 and the Securities Exchange Act of 1934,
both as amended. Statements that are not historicalfacts, including statements
about the pending transactions described above, and the parties' perspectives
and expectations, areforward-looking statements. Such statements include, but
are not limited to, statements regarding the proposed transaction,
includingthe anticipated initial enterprise value and post-closing equity
value, the benefits of the proposed transaction, integration plans,
expectedsynergies and revenue opportunities, anticipated future financial and
operating performance and results, including estimates for growth,the expected
management and governance of the combined company, and the expected timing of
the transactions. The words "expect,""believe," "estimate," "intend," "plan"
and similar expressions indicate forward-lookingstatements. These
forward-looking statements are not guarantees of future performance and are
subject to various risks and uncertainties,assumptions (including assumptions
about general economic, market, industry and operational factors), known or
unknown, which could causethe actual results to vary materially from those
indicated or anticipated.
3
Consequently, you should not rely on these forward-looking statementsas
predictions of future events. Many factors could cause actual future events to
differ materially from the forward-looking statementsin this press release,
including but not limited to: (i) the risk that the Merger may not be
completed in a timely manner or at all, whichmay adversely affect the price of
AGBA's securities; (ii) the failure to satisfy the conditions to the
consummation of the Merger,including the approval of the Merger Agreement by
the shareholders of AGBA; (iii) the occurrence of any event, change or other
circumstancethat could give rise to the termination of the Merger Agreement;
(iv) the outcome of any legal proceedings that may be instituted againstany of
the parties to the Merger Agreement following the announcement of the entry
into the Merger Agreement and proposed Merger; (v)the ability of the parties
to recognize the benefits of the Merger Agreement and the proposed Merger;
(vi) the lack of useful financialinformation for an accurate estimate of
future capital expenditures and future revenue; (vii) statements regarding
Triller's industryand market size; (viii) financial condition and performance
of Triller, including the anticipated benefits, the implied enterprise
value,the expected financial impacts of the Merger, the financial condition,
liquidity, results of operations, the products, the expected futureperformance
and market opportunities of Triller; (ix) the impact from future regulatory,
judicial, and legislative changes in Triller'sindustry; (x) competition from
larger technology companies that have greater resources, technology,
relationships and/or expertise; and(xi) those factors discussed in AGBA's
filings with the SEC and those that will be contained in the definitive proxy
statement relatingto the Merger. You should carefully consider the foregoing
factors and the other risks and uncertainties that will be described in
the"Risk Factors" section of the definitive proxy statement and other
documents to be filed by AGBA from time to time with theSEC. These filings
identify and address other important risks and uncertainties that could cause
actual events and results to differ materiallyfrom those contained in the
forward-looking statements. Forward-looking statements speak only as of the
date they are made. Readers arecautioned not to put undue reliance on
forward-looking statements, and while AGBA and Triller may elect to update
these forward-lookingstatements at some point in the future, they assume no
obligation to update or revise these forward-looking statements, whether as a
resultof new information, future events or otherwise, subject to applicable
law. Neither AGBA nor Triller gives any assurance that AGBA, orTriller, or the
combined company, will achieve its expectations.
# # #
4
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