Elon Musk has offered to buy Twitter for the initially agreed price of $44 billion (€44.1 billion), in a move that could put an end to one of the most high-profile corporate legal battles in decades.
The Tesla chief sent a letter to Twitter on Monday night offering to go ahead with the deal, less than two weeks before the two parties were set to go to trial in Delaware Chancery Court.
According to a regulatory filing on Tuesday, Musk’s lawyers said in the letter that the entrepreneur intended to close the deal at the previously agreed price of $54.20 a share, once debt financing is received, provided the court halted the legal action and adjourned the upcoming trial and related proceedings.
“The Musk parties provide this notice without admission of liability and without waiver of or prejudice to any of their rights,” the letter said.
In a statement, a Twitter spokesperson acknowledged that it had received the letter and said that the “intention of the company is to close the transaction at $54.20 per share.”
The two parties met in court in an emergency hearing via Zoom early on Tuesday with the judge, Kathaleen McCormick, according to a person familiar with the situation.
Twitter is seeking broader protections from the court, the person said, such as an order to give guarantees on timing and certainty of closing. The two sides are now hashing out what a mechanism might look like, the person said.
Another emergency court hearing in which both sides will update the judge is expected to take place as soon as late Tuesday, according to two people familiar with the matter.
A person close to Twitter said the company is concerned that Mr Musk might be offering to proceed with the deal in an effort to delay a trial. Mr Musk was due to be deposed later this week.
Shares in Twitter rose sharply after Bloomberg first reported that Mr Musk proposed to proceed with a deal, before being halted. After trading resumed, Twitter shares gained 22 per cent to $52.
The Tesla chief executive initially agreed in April to take over Twitter for $54.20 a share. Just months later, in July, he said he intended to pull out of the deal, citing concerns that the company had misled regulators and investors over the number of fake accounts on its platform.
Twitter sued him to complete the deal, arguing that his attempt to back out was motivated by protecting his financial interests during a downturn in tech stocks rather than any valid concerns over account numbers.
A trial was set to begin on October 17th. The two parties have issued dozens of subpoenas to investors, bankers and others involved in the deal, and each has accused the other of failing to co-operate in the pretrial process.
Last month, Mr Musk amended his complaint to include allegations from former Twitter executive Peiter Zatko that the company misled users and regulators about its security practices — claims that were only made public after Mr Musk first announced his intention to pull out, and which the social media company denies.
Mr Musk’s attempt to avoid a protracted legal battle — which has already resulted in the release of his private text messages with well-known tech figures — adds another twist to a deal that has captivated the corporate world.
While most observers believed it would be near-impossible for him to back out of the watertight agreement, there was also curiosity as to whether he could get away with it and what that would mean for merger and acquisition contracts more broadly.
Historically it has been extremely difficult for buyers who agree to a deal to be allowed to walk away from it unless there are extraordinary breaches of the merger agreement.
A coterie of Wall Street banks that have signed up to provide $13bn of financing will now likely be facing a difficult path ahead to unload the debt with the sell-off in the leveraged finance market, and may have to fund the deal at least partially themselves. — Copyright The Financial Times Limited 2022