Billionaire Elon Musk is proposing to go ahead with his original offer of US$44 billion to take Twitter private, a securities filing showed on Tuesday (Oct 4), signalling an end to a legal battle that could have forced Musk to pay up.
An agreement would put the world's richest person in charge of one of the most influential media platforms and end months of litigation that damaged Twitter's brand and fed Musk's reputation for erratic behavior.
Musk, the chief executive of electric car maker Tesla, will take over a company he originally committed to buying in April, but soon soured on.
Twitter shares jumped 22.2 per cent to close at US$52.00, while Tesla shares gained 2.9 per cent to US$249.44.
The news comes ahead of a highly anticipated face-off between Musk and Twitter in Delaware's Court of Chancery on Oct 17, in which the social media company was set to seek an order directing Musk to close the deal for US$44 billion.
Musk sent Twitter a letter on Monday that said he intended to proceed with the deal on the original terms if the Delaware judge stayed the proceedings. A source familiar with Twitter's team told Reuters that at a court hearing on Tuesday morning the judge requested the two sides report back in the evening.
It was not immediately clear why Musk chose to abandon his fight. He was about to be deposed, which could have included tough questioning. "He was about to get deposed and a lot of uncomfortable facts were going to come out," said Eric Talley, a professor at Columbia Law School.
Twitter received Musk's letter and intended to close the deal at the original US$54.20 price, a spokesperson told Reuters. Twitter did not say whether it accepted Musk's offer.
Musk, one of Twitter's most prominent users, said in July he could walk away without penalty because the number of bot accounts was much higher than Twitter's estimate of less than 5 per cent of users. Bots are automated accounts, and their use can lead to overestimations of how many humans are on the service, which is important for advertising rates and the overall value of the service.
Twitter's legal team on Sep 27 said that documents obtained from two data scientists employed by Musk showed they estimated the number of fake accounts on the platform at 5.3 per cent and 11 per cent.
"None of these analyses so far as we can tell remotely supported what Mr Musk told Twitter and told the world in the termination letter," Twitter lawyer Bradley Wilson told the court.
The original deal was "a very seller-friendly agreement that would be very difficult to get out of", said Adam Badawi, a law professor at UC Berkeley. Musk realized, he said, "in all likelihood it was going to result in forcing him to close at US$54.20 a share".
A settlement between the two sides would revive fears among Twitter's users about Musk's plans for the platform, which has removed prominent politically conservative voices. Supporters of Donald Trump hope that Musk will reactivate the account of the former US president, who was banned after the Jan 6, 2021, attack on the US Capitol by his supporters.
Musk has used Twitter to stir controversy, including on Monday when he floated a peace plan for the Ukraine-Russia war that drew swift condemnation from Ukraine's president, Volodymyr Zelenskyy.
Bloomberg was the first to report Musk was willing to pay the original price.
A settlement at the original price would also allow Musk to finance the transaction without any complications. If Musk and Twitter had renegotiated the price, it would have technically allowed committed backers to walk away.
Musk has already sold US$15.4 billion worth of Tesla shares since agreeing to buy Twitter. He has said he does not plan to sell any more of his stake in Tesla, but some analysts expect him to sell down his stake further to fund the Twitter deal.
Musk has also secured a financing commitment from banks - including Morgan Stanley, Bank of America, Mitsubishi UFJ Financial Group and Barclays - to provide a US$12.5 billion margin loan to support his Twitter acquisition.
The banks that agreed to finance the acquisition are likely to lose hundreds of millions of dollars on the deal because they would struggle to attract investors to buy the debt, given the downturn in markets since the deal was signed.
However, the banks agreed to provide the financing irrespective of whether they can sell the loans and face long legal odds freeing themselves from the financing commitment, according to regulatory filings.
Since Twitter has already received shareholder support for the sale to Musk, the deal could close quickly in the coming weeks if the two sides were to settle on the original terms. In June, Twitter said the waiting period for antitrust clearance had expired, indicating that the deal could go forward.
Angelo Zino, senior industry analyst at CFRA Research, believes that Musk is likely to close the deal this time, after realising that the odds of a court victory are slim.
“At the end of the day, I think this was an asset that he was ultimately going to have to own in some respect or, at the very least, have to pay a hefty fine,” he told CNA’s Asia First.
Zino said Twitter is likely to work out its next steps to get Musk to potentially close this deal without any conditions attached to it.
“But nonetheless, for the most part, most investors out there believe that there is minimal deal risk at this point in time,” he added.