July 13, 20223 yr Obviously, this is TWTR's filing, but the fact pattern is HORRIBLE for Musk. 1. Musk said publicly that the deal had no financing or business due diligence contingency: Quote At the time of delivery, the Proposal was also subject to the completion of financing and business due diligence, but it is no longer subject to financing as a result of the Reporting Person’s receipt of the financing commitments . . . and is no longer subject to business due diligence. 2. Musk is the one who sent the intial draft of the merger agreement, which he touted as "Seller Friendly" Quote He delivered a letter to the board repeating that his $54.20 per share offer was "best and final,” threatening once more to sell all of his shares if his bid were rejected, and saying he would propose a "seller friendly” merger agreement to be signed before the market opened the next day. Musk’s counsel sent over a draft agreement, reiterated that Musk’s offer was not contingent on any -12- due diligence, and underscored that the form of the proposed agreement was "intended to make this easy on all to get to a deal asap.” 3. The MA was negotiated to make it even more seller friendly and include a specific performance clause. Quote The agreement was negotiated through the night and, in the process, became even more seller-friendly. Among the provisions not contained in Musk’s proposal but included at Twitter’s insistence were an undertaking by defendants, including Musk, to "take or cause to be taken . . . all actions and to do, or cause to be done, all things necessary, proper or advisable” to obtain the financing (already committed) to consummate the transaction, Ex. 1 § 6.10(a); a clear disclaimer of any financing condition to closing, id. § 6.10(f); and a right on Twitter’s part to request and promptly receive updates from Musk about his progress in obtaining financing, id. § 6.10(d). These provisions ensured that financing would be no obstacle to closing and that the company would have the right to stay informed of Musk’s progress in arranging his financing. Finally, and critically, Twitter negotiated for itself a robust right to demand specific performance of the agreement’s terms that encompassed the right to compel defendants to close the deal, and ensured that Musk personally was bound by that provision (among others). Id. § 9.9(a)-(b), Preamble. 4. TWTR specifically retained the right to hire and fire employees (remember, the loss of employees is one of the reasons Musk claims to have right to walk). Quote Twitter also negotiated for itself a right to hire and fire employees at all levels, including executives, without having to seek Musk’s consent. Musk’s initial draft of the merger agreement would have deemed the hiring and firing of an employee at the level of vice president or above a presumptive violation of the ordinary course covenant absent Musk’s consent. Twitter successfully struck that provision before signing. 5. TWTR's responsibility to share info was really limited to getting debt financing, which hasn't been pulled. Quote Twitter is required to use its "commercially reasonable best efforts” to assist defendants with arranging financing, but that obligation is qualified: Twitter need not "prepare or provide any financial statements or other financial information” other than the financial information provided to the SEC, nor provide any "other information that is not available to the Company without undue effort or expense.” Id. § 6.11(a). Moreover, Twitter’s obligations under Section 6.11 are its "sole obligation . . . with respect to cooperation in connection with the arrangement of any financing,” and Twitter may be considered to have breached the provision only if a failure by Parent to obtain the committed debt financing is "due solely to a deliberate action or omission taken or omitted to be taken by the Company in material breach of its obligations.” 6. They also have to give info for reasonable requests regarding closing. Quote Subject to certain conditions, including entry into a confidentiality agreement, Twitter must provide Parent and its advisors with "reasonable access” to information about its "business, properties and personnel” as defendants "reasonably” request. Id. § 6.4. The information requested must be for a "reasonable business purpose related to the consummation of the transactions contemplated by this Agreement.”
July 13, 20223 yr I gets better on the spam accounts. Musk never did any diligence prior to signing the merger agreement and waiving diligence requirements: Quote Yet Musk made his offer without seeking any representation from Twitter regarding its estimates of spam or false accounts. He even sweetened his offer to the Twitter board by expressly withdrawing his prior diligence condition. Because purging bots was his mission, and he would ""die trying." Quote On April 9, 2022, the day Musk said he wanted to buy Twitter rather than join its board, he texted Taylor that "purging fake users” from the platform had to be done in the context of a private company because he believed it would "make the numbers look terrible.” At a public event on April 14, Musk said eliminating spam bots would be a "top priority” for him in running Twitter. And they highlight that the 5% number was qualified and had been in the public filings for YEARS Quote based on "an internal review of a sample of accounts,” involves "significant judgment,” "may not accurately represent the actual number of [false or spam] accounts,” and could be too low. Twitter has published the same qualified estimate — that fewer than 5% of mDAU are spam or false — for the last three years, and published similar estimates for five years preceding that.
July 13, 20223 yr Finally, they literally gave him EVERYTHING. Every Tweet, ever: Quote Nonetheless, in a continuing effort at cooperation, Twitter agreed to provide Musk everything he now demanded regarding the firehose, including access to "100% of Tweets and favoriting activity.” Twitter cautioned, as it had so many times before, that this data would not allow Musk to accurately assess the number of spam or false accounts. But on June 21, 2022, it gave defendants’ counsel the demanded access LOL Quote Indeed, in a June 30 conversation with Segal, Musk acknowledged he had not read the detailed summary of Twitter’s sampling process provided back in May
July 13, 20223 yr Just finished it. Musk is toast. Solid closing: Quote 141. For Musk, it would seem, Twitter, the interests of its stockholders, the transaction Musk agreed to, and the court process to enforce it all constitute an elaborate joke.
July 13, 20223 yr 1 hour ago, vikas83 said: Just finished it. Musk is toast. Nah Vikas, this is exactly what Musk knew would happen. He has Twitter right where he wants them. Chuckmate!
July 14, 20223 yr On 7/12/2022 at 10:20 AM, NOTW said: This dude is nuts He’s right though. People have a hard time projecting out over decades compounding rates, but it’s pretty severe. Huge old populations with tiny young populations to support them, generation after generation, is a serious problem.
July 14, 20223 yr On 7/13/2022 at 12:10 AM, vikas83 said: Chancery Court Complaint filed. Haven’t read it yet, but apparently there are some amazing lines about Musk’s insanity. https://www.wlrk.com/docs/76660099_Final-Verified-Complaint.pdf Read through it this morning. Damn it seems they have Musk dead to rights here.
July 14, 20223 yr What does having Musk dead to rights mean? Does it mean that he has two options: pay at the full price or pay the 1B to back out?
July 14, 20223 yr Just now, VanHammersly said: What does having Musk dead to rights mean? Does it mean that he has two options: pay at the full price or pay the 1B to back out? No. He doesn't get to decide. Court decides. Dead to rights means people think the court will force him to buy (specific performance).
July 14, 20223 yr 31 minutes ago, vikas83 said: No. He doesn't get to decide. Court decides. Dead to rights means people think the court will force him to buy (specific performance). Do you know if this is a process that gets expedited attention by the court or will this drag on for a while?
July 14, 20223 yr 53 minutes ago, vikas83 said: No. He doesn't get to decide. Court decides. Dead to rights means people think the court will force him to buy (specific performance). So funny seeing blue checkmark "experts" on Twitter claiming that this is a strategic move by Musk and that now he has leverage and will be able to renegotiate to purchase twitter at a lower price.
July 14, 20223 yr 35 minutes ago, Shepard Wong said: Do you know if this is a process that gets expedited attention by the court or will this drag on for a while? Twitter asked for a 4 day trial in September because there is a October 24th drop dead date in the merger agreement. Now, that date is arguably tolled and unenforceable due to Musk's breaches of the agreement, but I'd guess the trial happens before that date. After that, either party can appeal to the DE Supreme Court, which should be a ~6 month process.
July 14, 20223 yr 14 minutes ago, Phillyterp85 said: So funny seeing blue checkmark "experts" on Twitter claiming that this is a strategic move by Musk and that now he has leverage and will be able to renegotiate to purchase twitter at a lower price. The mistake they are making is applying logical thought to an illogical actor. A logical person doesn't enter into a one-sided merger agreement without doing basically any due diligence. A logical person doesn't create a public record of his misdeeds and claims by Tweeting them out. Musk isn't a logical actor. Also, Twitter can't really engage with Musk on a reduced price unless he agrees to simultaneously sign and close -- and that can't happen because they need a shareholder vote (among other steps). They already have a massively seller friendly agreement and Musk is trying to walk -- basically, no agreement with Musk is worth the paper it is written on. If I'm the TWTR board, I only drop the price IF Musk agrees to a $10 billion break-up fee and puts the money into escrow (or TSLA stock). No way he would do that.
July 14, 20223 yr https://thehill.com/homenews/campaign/3557077-trump-fires-back-after-musk-says-its-time-for-him-to-sail-into-the-sunset/ "When Elon Musk came to the White House asking me for help on all of his many subsidized projects, whether it’s electric cars that don’t drive long enough, driverless cars that crash, or rocketships to nowhere, without which subsidies he’d be worthless, and telling me how he was a big Trump fan and Republican, I could have said, ‘drop to your knees and beg,’ and he would have done it,” Trump asserted. "Now Elon should focus on getting himself out of the Twitter mess because he could owe $44 billion for something that’s perhaps worthless,” Trump continued in a separate post. "Also, lots of competition for electric cars!” Oh boy, we got us a cat fight here! Someone is going to get their eyes scratched out!
July 14, 20223 yr 18 minutes ago, Paul852 said: I saw that. Didn't think it was real Considering the two combatants involved?
July 14, 20223 yr Maybe Musk and Trump don't get along because Musk's dad is stealing Don's thunder... Pervy ass MF'ers, man.
July 14, 20223 yr 2 hours ago, we_gotta_believe said: Maybe Musk and Trump don't get along because Musk's dad is stealing Don's thunder... Pervy ass MF'ers, man. Bunch of creeps.
July 15, 20223 yr 17 hours ago, we_gotta_believe said: Maybe Musk and Trump don't get along because Musk's dad is stealing Don's thunder... Pervy ass MF'ers, man. He groomed her. Disgusting
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