Bloomberg Business —
Elon Musk and Twitter have until October 28 to finalize their $44 billion takeover transaction; else, they will have to start the trial process all over again. On Thursday, a court decided to halt the legal procedures.
Everyone is now waiting for Musk to actually have the funds available to transfer.
Even the richest man in the world requires some assistance for a purchase this large. Including two loan commitment letters from Morgan Stanley and other unnamed financial institutions (one for $13 billion and another for $12.5 billion, the latter of which was ultimately cut to $6.25 billion), Musk said in April that he had secured $46.5 billion in funding for the transaction.
. Musk contributed about $21 billion in equity to the deal as well, and he later secured an extra $7 billion from backers including Oracle founder Larry Ellison and cryptocurrency company Binance.
The uncertainty around the state of those financial arrangements now appears to be a major cause of contention between Musk and Twitter (TWTR).
In a filing earlier on Thursday, Musk’s team claimed that there was no need to continue the lawsuit because he had committed to closing the deal at the previously agreed-upon terms and the banks that had agreed to provide debt financing to assist him in paying for it were “working cooperatively to fund the close.”
Twitter opposed stopping the proceedings because it was dubious after Musk spent months attempting to back out of the agreement and because it wanted to keep the weight of a trial hanging over him. It expressed concerns in a second filing about testimony given Thursday morning by an unidentified bank representative claiming that Musk had not yet sent a borrowing notice andhas not previously indicated to them that he expects to finalize the purchase, much less on a specific timetable. Twitter said that Musk ought to finalize the agreement by next week.
Musk has sounded the most assured since he originally announced the purchase was “on pause” in May and tried to terminate the agreement in July, according to many legal experts, who believe Musk genuinely is trying to finish the acquisition this time. Many people who are following the case believe that Musk saw the writing on the wall that he would probably lose at trial and be forced to buy Twitter nonetheless — spending more money and significantly harming the business he would eventually have to take over in the process.
According to Ann Lipton, associate professor of commercial law at Tulane Law School, “I think Musk does plan to conclude the acquisition, and I think his reasons for not closing it right this second are probably pretty obvious.”
The most likely explanations, according to her, have to do with how long Musk needs to put together all the previously disclosed financial plans in order to clinch the deal.
According to Lipton, Musk is probably attempting to assist Morgan Stanley in marketing the loan to other investors before asking them to provide him the money to finalize the purchase. Musk isn’t compelled to do that, but he should since it would benefit a bank he has a long-standing connection with and because the current economic climate is more challenging than it was when the original agreements were formed.
After Musk spent months claiming that Twitter had flaws and in response to broader declines in the social media and digital advertising markets, some have wondered whether Morgan Stanley and the other banks providing debt financing might try to walk away from the deal now that Twitter is arguably even less valuable than when the deal was first struck.
But if the bank tries to break its promise right away, it can be subject to legal repercussions.
According to George Geis, professor of strategy at the UCLA Anderson School of Management, “the only way they could get out of it is to claim a major adverse consequence and that Twitter has changed so drastically since they agreed to the contract that they no longer wish to finance the purchase.”
Musk might not necessarily be off the hook even if the banks tried to withdraw their support. If Musk’s debt funding were to go through, Musk could theoretically walk away from the deal with a $1 billion breakup payment to Twitter, according to the merger agreement. Musk could potentially face a court order to sue Morgan Stanley to supply the money or finish the purchase without them if Delaware Chancery Court chancellor Kathaleen St. Jude McCormick were to conclude that Musk was at blame for the financing falling through after his months of trashing the company.
Aside from debt financing, Lipton stated that Musk might still want a little extra money to pay for his equity piece of the deal, which could necessitate his selling more Tesla (TSLA) shares. He would then need to wait a few days before he could do so, Lipton added. On October 19, Tesla (TSLA) is scheduled to release its quarterly earnings, and executives are normally prohibited from selling shares in the days leading up to an earnings announcement. (Musk undoubtedly owns a sizable share in SpaceX as well, although it’s unclear what it would take to quickly liquidate those holdings given that SpaceX is not a publicly traded firm.)
Another reason for the delay could be that Musk is making sure his equity partners are still on board despite all the turmoil he has caused for Twitter in recent months. According to Geis, those investors may be thinking to themselves right now: “How should I weigh the danger of [joining in] this deal against the chance of losing my relationship with Musk [if I don’t]?”