> We currently estimate that false or spam accounts represent less than 5% of our MAUs. However, this estimate is based on an internal review of a sample of accounts and we apply significant judgment in making this determination.
Here's the actual quote from Twitter's IPO. 0% chance Musk is convincing a judge this statement is "materially off" given the amount of disclaimers attached.
Similar statements in more recent fillings have all come with similar disclaimers to the best of my knowledge.
Yep, agreed. It doesn't seem like he has much of a shot. The only way it seems possible is if they knew it was materially off, there are internal docs with analysis showing something like 10%, and they just lied and put some language around it to give them wiggle room.
You should definitely read Matt Levine's coverage of the fiasco.
Quote from his newsletter:
> That contract does not allow Musk to walk away if it turns out that “spam/fake accounts” represent more than 5% of Twitter users. We discussed this last month, when Twitter admitted in a securities filing that it had (slightly) overestimated its daily active users for years. The merger agreement contains a provision that allows Musk to walk away if Twitter’s securities filings are wrong — and this 5% number is in its securities filings — but only if the inaccuracy would have a “Material Adverse Effect” on the company. (See Sections 4.6(a) and 7.2(b).) That is an incredibly high standard: Delaware courts have almost never found an MAE. An MAE has to be something that would “substantially threaten the overall earnings potential of the target in a durationally-significant manner,” the courts have said; there is a rule of thumb that an MAE requires a 40% decrease in long-term profitability. If it turned out that 6% or 20% or 50% of Twitter accounts are bots, that will be embarrassing and might even reduce Twitter’s future advertising revenue, but will it be an MAE?
There isn't a way for him to exit the deal – Twitter can compel him to go through with it based on the contract. The main question remains though: Will Twitter go through the arduous and potentially ruinous process of forcing him to honour his obligations? Is this a negotiating tactic on his behalf (Is he trying to get a better deal)? If he does want out, will Twitter compromise and take a settlement (they could ask for way more than oft-discussed $1B exit fee)?
This is Musk being Musk, and personally I hope if he does try to back out or renegotiate, he gets punished severely.
Matt's understanding of M&A is... a little shallow. An MAE or MAC is about something changing between the time of the deal being signed and actually closing.
There doesn't need to be an MAE or MAC for a deal to fall through if a representation the target makes is false. In this specific case Musk can walk if any of the reps & warranties are false (or any of the covenants are breached).
