EVNow
Well-Known Member
Actually his “whining” is the most relevant thing. Much more than opinion of all the merger and contract law experts we suddenly have in this thread.
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Elon & Twitter
- Thread starter Buckminster
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_Redshift_
Member
EVNow
Well-Known Member
Daniel in SD
(supervised)
That's why I asked this question. Still haven't seen anything.
Sounds like you've seen an analysis from an expert that supports Elon's side?
Daniel in SD
(supervised)
Best analysis I've read:
EVNow
Well-Known Member
Section 6.4 Access to Information; Confidentiality. Upon reasonable notice, the Company shall (and shall cause each of its Subsidiaries to) afford to the representatives, officers, directors, employees, agents, attorneys, accountants and financial advisors (“Representatives”) of Parent reasonable access (at Parent’s sole cost and expense), in a manner not disruptive in any material respect to the operations of the business of the Company and its Subsidiaries, during normal business hours and upon reasonable written notice throughout the period commencing on the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement pursuant to Article VIII, to the properties, books and records of the Company and its Subsidiaries and, during such period, shall (and shall cause each of its Subsidiaries to) furnish promptly to such Representatives all information concerning the business, properties and personnel of the Company and its Subsidiaries as may reasonably be requested in writing, in each case, for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement; provided, however, that nothing herein shall require the
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Company or any of its Subsidiaries to disclose any information to Parent or Acquisition Sub if such disclosure would, in the reasonable judgment of the Company, (i) cause significant competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated, (ii) violate applicable Law or the provisions of any agreement to which the Company or any of its Subsidiaries is a party, or (iii) jeopardize any attorney-client or other legal privilege. No investigation or access permitted pursuant to this Section 6.4 shall affect or be deemed to modify any representation or warranty made by the Company hereunder. Each of Parent and Acquisition Sub agrees that it will not, and will cause its Representatives not to, use any information obtained pursuant to this Section 6.4 (or otherwise pursuant to this Agreement) for any competitive or other purpose unrelated to the consummation of the transactions contemplated by this Agreement. Parent will use its reasonable best efforts to minimize any disruption to the respective business of the Company and its Subsidiaries that may result from requests for access under this Section 6.4 and, notwithstanding anything to the contrary herein, the Company may satisfy its obligations set forth above by electronic means if physical access is not reasonably feasible or would not be permitted under applicable Law as a result of COVID-19 or any COVID-19 Measures. Prior to any disclosure, the Company and Parent shall enter into a customary confidentiality agreement with respect to any information obtained pursuant to this Section 6.4 (or otherwise pursuant to this Agreement).
EVNow
Well-Known Member
No.
But its beyond obvious that Elon's whining/concerns are a lot more relevant than forum posts on TMC. You don't have to be an "expert" to know that.
EVNow
Well-Known Member
Thats a hit job / opinion. Not analysis. The prejudice of the writer is extremely obvious.
ps : Actually its beyond stupid. This guy would have written what a stupid idea it is to start an EV company or rocket company 10 years back.
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Daniel in SD
(supervised)
Elon Musk says The Boring Company 'started out as a joke' and acknowledges his Los Angeles tunnel project may fail
Elon Musk appeared on the 'Joe Rogan Experience' podcast, where he said The Boring Company was a 'hobby company.' Musk also explained how the company started to act on its plans to build a high-speed transport system under Los Angeles: by digging a big pit in its parking lot.
www.businessinsider.com
Daniel in SD
(supervised)
Haha I guess you learned to do a Google search. Now you've returned to make unfalsifiable claims.
There is no way that Bloomberg can be said to be independent when it comes to Twitter
It's crazy the amount of media or social media companies in the US with one or two primary shareholders.
I'm okay with Twitter seeing a little pain given the underhanded things they do and have done and that's without a primary shareholder in control of Twitter. Unfortunately, many retirement plans will get a beating as the dust settles at TWTR.
AlanSubie4Life
Efficiency Obsessed Member
I think this analysis is far too kind to Elon. It's awfully generous of the author to claim that Elon didn't really want to buy Twitter and this was some sort of joke. I really don't think that's what is happening here.
It does sound like the author thinks it's quite possible that Elon will prevail in court (even if less likely than not) with his various paths to pleading that Twitter is violating the terms. It's a nice summary of the various paths to success (whatever that is) for Elon. The author makes a good point that Twitter is behaving fairly strangely - it does seem like they might not want the deal either, otherwise they would have just been even more open with Elon - just give the buyer what he wants! We'll see!
There's quite a lot of analysis in that article. Perhaps you did not read the whole thing. Yes, there's opinion, too, and I don't agree with the author's assertion that the Twitter acquisition was a joke. But he gets into the details of the contract and the arguments made by Elon's legal team, and he goes into much more detail than that vast majority of articles about the subject.
Daniel in SD
(supervised)
We have no idea what Elon asked for that he didn't get. Or whether in Twitter's reasonable judgement that information would have violated this clause:
Levine points out that he requested "a working copy of Goldman Sachs’ valuation model underlying its fairness opinion", something that Twitter probably doesn't even have (and even if they did would GS allow them to distribute it?). We're only getting Elon's side of the case here and it seems pretty weak...
Yeah, I think Elon is just impulsive and the stock market decline and the realization of what he was getting into caused him to try and find a way out.
If I had to bet I'd trust the market and guess that Elon will have to fork over more than $1 billion but less than the loss to TWTR shareholders.
AlanSubie4Life
Efficiency Obsessed Member
For sure. But what we do know makes it unclear whether they are being fully forthcoming. Of course, Twitter may just not be publicizing what they have shared; seems entirely possible.
If they want the deal to go through they'd probably try to find ways to not worry about the significant competitive harm (and there are other protections there too anyway since it's covered by disclosure protections). If you have a strong agreement and you want it to go through, you don't have to worry nearly as much about competitive harm by disclosure!
It definitely seems like part of the strategy is for Elon to ask for a bunch of stuff and then claim that not giving it to him is cause for termination of the agreement; the article's analysis of the covenants (which are qualified by "all material respects") was news to me.
Based on Elon's history I'd guess he's just going for the scattergun approach and Twitter has actually been doing everything they can to accommodate his requests.
The discussion of the precedents various different rulings would set in the Court of Chancery was interesting too. Delaware will have to be careful about how they rule here otherwise it'll have adverse effects in future.
_Redshift_
Member
It sounds like you think everyone else has an opinion but you, eh?
Unless your job is in legal affairs pertaining to these contractual areas, you are just whistling Dixie. Like everyone else here.
Knightshade
Well-Known Member
This seems to continue the misunderstanding folks have about what twitter has to provide in the agreement.
DD was skipped. They don't have to be fully forthcoming
Twitter is obligated to provide any info needed to literally close the transaction That's it.
Not any info needed to decide if the transaction is a good business choice. That ship sailed when Elon made the offer. You do THAT investigating BEFORE you make your offer.
The actual contract said:
That's the only purpose for which Twitter is obligated to provide info.
There's a reason M&A lawyers are almost universally saying twitter has a very strong case to demand specific performance, and Elon a very bad one to avoid it.
AlanSubie4Life
Efficiency Obsessed Member
I was just commenting on what the author of the Bloomberg article said about the covenants. I am not a lawyer so if he’s wrong about that part of the article, that’s fine. Personally I have no idea, was just commenting on what the implication of that might be (if true, which it may not be).
Right, I was not implying that that was required. Just whatever is needed to close the transaction (per the article). What that means will be decided soon enough, it seems.
To me it seems the meaning is not black and white (and of course it is not - that’s why there are lawyers).
For sure he has waived due diligence and it not being a good business move is not cause for termination of the agreement.
They definitely do not have to be fully forthcoming but have to satisfy the covenants in all material respects (whatever that means - I have absolutely no idea at all).
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Daniel in SD
(supervised)
I found this paragraph of the Matt Levine's piece interesting (he used to work for the firm Twitter just hired). Delaware courts are very protective of the state's reputation and wants to maintain it.
Fun fact: Wachtell, Lipton, Rosen & Katz was one of the firms that worked with Musk to take Tesla private in 2018 and Tesla with the Solarcity deal. Small world!
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