It seemed inevitable, and now, Elon Musk has officially filed a motion with the SEC to terminate his $44 billion takeover of Twitter, based on Twitter’s failure to provide accurate information on the number of fake accounts on its platform.
In a letter filed on behalf of Musk and his investment partners at Morgan Stanley, Musk is seeking to cancel the acquisition due to a ‘material breach of multiple provisions’ of the original merger agreement.
As per the filing:
‘[Twitter] appears to have made false and misleading representations upon which Mr. Musk relied when entering into the Merger Agreement, and is likely to suffer a Company Material Adverse Effect (as that term is defined in the Merger Agreement).”
Musk’s team says that, despite repeated requests for qualifying information, Twitter had failed to provide them with the data required to make an accurate and true assessment of the number of fake accounts on its platform.
“While Section 6.4 of the Merger Agreement requires Twitter to provide Mr. Musk and his advisors all data and information that Mr. Musk requests “for any reasonable business purpose related to the consummation of the transaction,” Twitter has not complied with its contractual obligations.”
Musk’s team says that it has been seeking more information from Twitter for nearly two months, with Twitter only providing limited access to the required data, in violation of the terms.
“Sometimes Twitter has ignored Mr. Musk’s requests, sometimes it has rejected them for reasons that appear to be unjustified, and sometimes it has claimed to comply while giving Mr. Musk incomplete or unusable information.”
In total, Musk’s team says that Twitter has failed to provide them with information on:
Information related to Twitter’s process for auditing the inclusion of spam and fake accounts in mDAU
Information related to Twitter’s process for identifying and suspending spam and fake accounts
Daily measures of mDAU for the past eight (8) quarters
Board materials related to Twitter’s mDAU calculations
Materials related to Twitter’s financial condition
Because Twitter has failed to comply with these requests within a reasonable time period, that, Musk’s team says, is a violation of the deal’s terms, and is therefore reason enough to cancel the agreement.
The letter also notes that Musk’s team is still unconvinced of Twitter’s metrics, with its own analysis of Twitter’s expanded usage data, which it provided last month, showing that fake accounts are more prevalent in the app than Twitter claims:
“Preliminary analysis by Mr. Musk’s advisors of the information provided by Twitter to date causes Mr. Musk to strongly believe that the proportion of false and spam accounts included in the reported mDAU count is wildly higher than 5%.”
Musk’s team also says that, based on its discussions with company execs, its understanding is that Twitter includes accounts that have been suspended within its active user metrics, which it says would see Twitter still including known fake and spam accounts within its publicly reported figures. Musk’s team also says Twitter’s process for determining the percentage of fake accounts ‘appears to be arbitrary and ad hoc’, further clouding their metrics.
Based on these ongoing questions, and Twitter’s failure to provide adequate justifications for such, Musk and Co. want to pull out, which will now put the onus on the SEC and/or the courts to decide whether the reasoning here is justified, and how it moves forward, or not, with the merger.
Which could be a disaster for Twitter, which has already cut executive jobs and shifted its entire business approach, in preparation for a pending Musk takeover.
Indeed, this week, reports suggested that Twitter CEO Parag Agrawal is ‘willing to go to war’ in order to make Elon Musk follow through with his takeover bid, even if Musk looks to back out of the process. Agrawal would personally be in for a big payday if the Musk deal were to go through – but more than that, the deal falling apart now would raise significant questions over Twitter’s future, and its capacity, as a business, to become a more viable, valuable proposition.
The overriding consensus thus far has been that Musk will eventually have to go through with his Twitter takeover push either way, because Musk waived various due diligence measures in his initial offer, in order to expedite the transaction,
But in today’s letter, Musk’s team has also provided a note of clarity on this point:
“Despite public speculation on this point, Mr. Musk did not waive his right to review Twitter’s data and information simply because he chose not to seek this data and information before entering into the Merger Agreement. In fact, he negotiated access and information rights within the Merger Agreement precisely so that he could review data and information that is important to Twitter’s business before financing and completing the transaction.”
It seems, then, that a stand-off is coming, with Musk now making the move that many had expected, which will force Twitter to respond and provide a detailed explanation of such to the SEC.
Twitter board Chairman Bret Taylor was quick to respond to the news:
The Twitter Board is committed to closing the transaction on the price and terms agreed upon with Mr. Musk and plans to pursue legal action to enforce the merger agreement. We are confident we will prevail in the Delaware Court of Chancery.
— Bret Taylor (@btaylor) July 8, 2022
Will Musk be able to get out of the deal, or will Twitter indeed be able to force Musk to pay up, based on the terms of the agreement?
It looks like things are about to get really ugly, which can only be bad for Twitter as a business.