The fate of the influential social media network will be determined by what may be an epic court battle, involving months of expensive litigation and high-stakes negotiations by elite lawyers on both sides.
The question is if Mr. Musk will be forced to stick with his acquisition or if he will have to pay a 10-figure penalty.
The company is determined to force the deal through due to Mr. Musk attaching few strings to his agreement to buy the company.
Mr. Musk is supported by a group of bankers and lawyers. Instead of engaging in a lengthy public brawl with the world's richest man and his legions of die-hard followers, the company might come under pressure to find a swift and relatively peaceful resolution that preserves the company's independence but leaves it in a tenuous financial position.
According to Mike Ringler, a partner at Skadden, Arps, Slate, Meagher & Flom, Mr. Musk was abandoning the takeover. Mr. Ringler said in his letter that Mr. Musk had not been given details about how it measures inauthentic accounts. He said that Mr. Musk didn't think that the metrics that were publicly disclosed about how many of its users were fake.
The board said it intended to take Mr. Musk to court to force him to complete the acquisition.
The terms of the merger agreement are at the center of the disagreement. Under certain circumstances, he can break off his deal with the social network by paying a $1 billion fee, but only if he loses debt financing. The data that Mr. Musk may need is required by the agreement.
Mr. Musk wants to know how many people use the platform. Lawyers for Mr. Musk have been haggling over the amount of data to give to him.
A huge slide in the valuation of technology companies, includingTesla, the electric vehicle company he runs, which is his main source of wealth, coincides with Mr. Musk's cold feet about theTwitter deal. Mr. Musk did not reply.
Since it uses private information, like users phone numbers and other digital clues about their identities, to determine whether an account is inauthentic, it has refused to publicly detail how it determines if an account is fake. The spokesman declined to say when the lawsuit would be filed.
The outcome is that the court says that Musk can walk away from the company. The court can enforce the deal if he goes through with it. There may be a middle ground where there is a price negotiation.
The completion of a sale to Mr. Musk is important for the social network. As technology companies were enjoying optimistic valuations, it struck its deal with Mr. Musk. Since the deal was announced, the stock price of the company has fallen 30 percent.
Legal experts said that Mr. Musk might be trying to force a lower price on the service.
No one else emerged as a white knight alternative to Mr. Musk during the deal-making.
If the debt financing remains intact, Mr. Musk can be sued by the company and forced to complete or pay for the deal. Tyson Foods tried to back out of an acquisition of the meatpacker IBP in 2001. Tyson had to complete the acquisition.
Legal authority is not the same as reality. It will cost millions of dollars to file a lawsuit and it will take months to resolve the issue.
Settlements have often been the result of disagreements. The $16 billion deal to acquire Tiffany & Company by Louis Vuitton was broken up in 2020 in order to get a lower price.
Charles Elson is a retired professor of corporate governance at the University of Delaware. Money is what it is all about.
The lower the price, the better for Mr. Musk and his backers. The company wants Mr. Musk to keep his offer.
If the deal collapses, it will be the most damaging outcome for the company. The high bar that Mr. Musk would need to meet in order to win the case was not met by other companies. Mr. Musk claims that he's not getting the information he needs to close the deal. He has argued that there was a serious problem with the business of the company.
A buyer has only been successful in persuading a Delaware court that a material change in the target company's business will allow it to exit the deal. That happened in the acquisition of Akorn by the health care company. Akorn's earnings fell after a whistle-blower accused it of skirting regulatory requirements.
In the case of Apollo Global Management, the chancellor in the Delaware court allowed Mr. Musk to walk away from the deal if it was proven that he had violated the merger agreement. The lawsuits ended in a broken deal.
Chancellors don't want to order a buyer to do something that he doesn't follow through on, a risk that is particularly acute in this deal, given Mr. Musk's habit of breaking legal confines.
If the court makes an order and he doesn't comply, they have to figure out what to do about it, according to Morgan Ricks.
While Mr. Musk usually relies on a small circle of friends to run his businesses, he has brought in a larger legal team to oversee the acquisition of the social networking site. Alex Spiro was his personal lawyer.
Skadden has argued many cases in front of the Delaware court, including the attempt to break off its acquisition of Tiffany.
The deal has been managed by lawyers from two firms. Wilson Sonsini is the longest serving legal counsel at the company. Simpson Thatcher has more experience in mergers and acquisitions.
If the acquisition price is changed or the company is broken up it will face more legal problems. Several shareholder lawsuits have already been filed over the acquisition by the social media company. If the company agrees to further reduce its acquisition price, shareholders will be displeased.
Adding legal scrutiny to Mr. Musk is a possibility. The SEC was looking into whether Mr. Musk properly disclosed his stake in the social media company. The regulators secured a $40 million settlement from Musk and his company.
A merger agreement is nothing more than a piece of paper. Ronald Barusch, a retired mergers and acquisitions lawyer who worked for Skadden Arps before it represented Mr. Musk, said that a piece of paper can give you a lawsuit if your buyer doesn't like it. You don't get a deal from a lawsuit. It tends to give you a long headaches. A damaged company.
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