Elon Musk agrees to $44 billion acquisition of Twitter, averts trial
Elon Musk is offering to proceed with his first $44 billion offer for Twitter
He is giving up his legal fight to withdraw from the purchase
The Tesla CEO made the offer in a letter to Twitter according to a SEC filing
According to information Musk provided in a filing with the U.S. Securities and Exchange Commission on Tuesday, the Tesla CEO made the offer in a letter to Twitter.
The proposal is being offered just two weeks before Twitter's case in Delaware Chancery Court seeking to compel Musk to complete the purchase goes to trial.
According to the filing, he will complete the purchase provided that he receives loan financing and that the court dismisses the lawsuit.
By completing the transaction, Musk effectively granted Twitter what it was asking the court to order — "specific performance" of the agreement with Musk, which required him to complete the purchase at the original price. Musk reportedly agreed to a $1 billion breakup fee in his contract.
Professor of law at Columbia University Eric Talley stated that he is not amazed by Musk's change of mind, particularly in light of the "not going to be pleasant" deposition that Twitter lawyers are slated to conduct on Thursday.
His argument didn't appear to be that solid from a legal standpoint, according to Talley. It appeared to be a very straightforward example of buyer's remorse.
If Musk were to lose the trial, the judge could not only force him to close the deal but also impose interest payments that would have increased its cost, Talley said.
What did surprise Talley is that Musk doesn’t appear to be trying to renegotiate the deal. Even a modest price reduction might have given Musk a “moral victory” and the ability to say he got something out of the protracted dispute, Talley said.
Following a roughly 13% increase to $47.93 on Tuesday afternoon due to news of the fresh offer, trading in Twitter stock was suspended on the New York Stock Exchange for most of the day due to "news pending."
That is still significantly less than Musk's initial offer, which was $54.20. When trading in stock becomes too chaotic or when a company is due to release market-moving news, stock exchanges will forcefully suspend trade to give investors a break.
Neither Twitter nor attorneys for Musk responded to requests for comment Tuesday afternoon.
After agreeing to purchase the San Francisco business in April, Musk has been attempting to back out of the arrangement for a number of months. The deal has already received shareholder approval, and legal experts said Musk had significant difficulties in fending off Twitter's lawsuit, which was brought in July.
Twitter sued Musk after Musk stated the deal was off because he believed Twitter had undercounted the number of fraudulent accounts using its network.
Musk's defence centred mostly on the claim that Twitter misrepresented the methodology it uses to calculate the number of "spam bot" accounts that are useless to advertisers. Most legal experts think he had a difficult time persuading the court's chief judge, Chancellor Kathaleen St. Jude McCormick, that the merger agreement should be terminated because of certain changes after it was signed in April.
Legal experts said Musk may have anticipated that he would lose. Things haven't been going well for him in court recently, with the judge ruling more frequently in Twitter's favor on evidentiary matters, said Ann Lipton, an associate law professor at Tulane University. The judge’s denied several of Musk’s discovery requests, Lipton said.
It's also possible that Musk's co-investors in the deal were starting to get nervous about how the case was proceeding, she said.
Twitter had been attempting to dissect Musk's attempts to get the help of outside data scientists to support his worries, which was Musk's main justification for ending the agreement that Twitter was misrepresenting how it evaluated its "spam bot" problem.
Twitter now has options in the case and doesn’t necessarily have to accept a new offer from Musk, said Robert Anderson, a law professor at Pepperdine University.
“Twitter could still be concerned that the same thing might happen again without some additional security,” Anderson said. “They’re going to want some assurance that the deal is going to happen right away."
Columbia's Talley said he would insist on Musk putting money into an escrow account until the deal is completed. Such an account could hold cash and/or Twitter shares, as a good-faith demonstration by Musk, Talley suggested.
Strangely, despite Twitter being the primary platform where numerous events in the disagreement have been discussed, neither Musk nor Twitter CEO Parag Agrawal has posted anything about the deal there. A divisive plan to stop Russia's invasion of Ukraine has been the subject of many of Musk's tweets in the last 24 hours, irking Ukrainian President Volodymyr Zelensky.
Monday, Musk stated in a tweet that in order to achieve peace, Russia should be permitted to retain control of the Crimean Peninsula that it annexed in 2014. In response to Russia's partial activation of reservists, he added that Ukraine should adopt a neutral stance and abandon its application to join NATO.
If the deal does go through, Musk may be stuck with a company he damaged with repeated statements denoucing fake accounts, Susannah Streeter, senior markets analyst for Hargreaves Lansdown in the United Kingdom, wrote in an investor note. “This is an important metric considered to be key for future revenue streams via paid advertising or for subscriptions on the site, and his relentless scrutiny of Twitter’s figures over the last few months is likely to prompt questions from potential advertising partners," she wrote.
The news of the settlement broke just hours after Musk's lawyers submitted a request late Monday night calling for Twitter to be fined for allegedly ordering whistleblower Peiter "Mudge" Zatko to destroy evidence in June. "An adverse inference is drawn against plaintiff, that all destroyed evidence corroborates Mr. Zatko’s testimony," Musk attorneys said in a proposed order.
If Musk were to lose, among the remedies that would favor Twitter is a court order to go through with the deal. The Chancery Court last year forced private equity firm Kohlberg & Co. to go through with its $550 million buyout of DecoPac, a company based in Minnesota that calls itself the world’s largest supplier of cake decorating supplies to professional decorators and bakeries. The case was emblematic of the court’s common — though not uniform — resolution of enforcing contractual obligations on buyers.
Other options include if determined to be at fault for the deal's failure, forcing Musk to pay the breakup price each side agreed upon. Or he might have to fork up more cash without actually paying $44 billion to purchase the business.