Musk Revives $44 Billion Twitter Bid, Aiming To Avoid Trial

(Bloomberg) -- Elon Musk revived his bid for Twitter Inc. at the original offer price of $54.20 a share, potentially avoiding a courtroom fight over one of the most contentious acquisitions in recent history. 

Musk made the proposal in a letter to Twitter on Monday, according to a filing with the Securities and Exchange Commission that confirmed a Bloomberg report. Shares of Twitter climbed as much as 23% when they resumed trading following a halt on the news. San Francisco-based Twitter said it received the letter and intends to close the deal at the original price, without commenting specifically on how it will respond to Musk.

For Twitter, proceeding with Musk's original terms augurs a future under a mercurial billionaire who has spent months publicly criticizing its management, questioning its value and changing his mind. It also means that his contested claims -- that Twitter was lying about which percentage of users were bots, for instance -- are not likely to be scrutinized in a courtroom.

Musk had been trying for months to back out of his contract to acquire Twitter, signed in April. The billionaire began showing signs of buyer's remorse shortly after the deal was announced, alleging that Twitter had misled him about the size of its user base and the prevalence of automated accounts known as bots.

Musk formally quit the accord in July and Twitter sued him in Delaware Chancery Court to force him to go forward with the purchase. A trial is scheduled to begin Oct. 17. The judge in Delaware on Tuesday asked both sides to come back to her with a proposal on how the case can now proceed. The options include having Twitter seek to dismiss the case or have her continue to retain jurisdiction until the deal closes, said a person familiar with the matter.

In the letter, Musk's attorneys wrote that the billionaire and his supporters “intend to proceed to closing of the transaction contemplated by the April 25, 2022, merger agreement, on the terms and subject to the conditions set forth therein and pending receipt of the proceeds of the debt financing,” according to the filing, provided the court “enter an immediate stay of the action.”

In the run-up to the planned Delaware showdown, lawyers for both sides have fired cannonades of subpoenas at each other aimed at teasing out testimony and evidence. Musk's side needed to demonstrate that Twitter violated the terms of the deal. Twitter alleged that Musk used the bots issue as a pretext for backing out a deal he no longer found economically sound.

Musk's legal team was getting the sense that the case was not going well, as Judge Kathaleen St. J. McCormick sided repeatedly with Twitter in pretrial rulings, according to one person familiar. Even with the late emergence of a Twitter whistleblower who alleged executives weren't forthcoming on security and bot issues, there were concerns Musk's side would not be able to prove a material adverse effect, the legal standard required to exit the contract.

Inside Twitter on Tuesday, many employees were sitting through 2023 planning presentations when the news first started to circulate, according to multiple sources. Presenters did not acknowledge the news, which staffers saw spreading on their own social network. Many employees have opposed the idea of working for Musk, who has been openly mocked and criticized on internal Slack channels since the deal was signed.

In an internal memo Tuesday to Twitter staff, viewed by Bloomberg News, General Counsel Sean Edgett thanked workers for their patience as the company works through the legal issues. “I will continue to keep you posted on significant updates,” he wrote. 

Twitter shareholders voted Sept. 13 to accept the buyout offer as Musk submitted it. The company said at the time that 98.6% of the votes cast were in favor of the deal. Musk, Twitter's largest shareholder, didn't vote at all, according to two people familiar with his decision. Musk owned almost 10% of Twitter -- more than 73 million shares -- when he agreed to acquire the company.

Musk was scheduled to answer questions about the deal in Austin, Texas, on Oct. 6-7, according to a court filing Tuesday. Twitter Chief Executive Officer Parag Agrawal was scheduled to sit down for his deposition Monday.  

The case is Twitter v. Musk, 22-0613, Delaware Chancery Court (Wilmington).

(Updates to add that Twitter received Musk's letter in second paragraph, memo from general counsel in 10th.)

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