Policy

An Elon Musk takeover is Twitter's worst nightmare. Here's what happens next.

Twitter's board can't really say yes to Musk, but it'll have a hard time saying no.

Elon Musk

Elon Musk is making a move on Twitter.

Photo illustration: Patrick Pleul/Picture Alliance via Getty Images; Protocol

Elon Musk just can’t seem to keep himself out of the news cycle. (To Musk, this is of course a feature, not a bug.) Less than two weeks ago, he revealed he had acquired a massive stake in Twitter on the down-low, which garnered him the offer of a seat on the company’s board. He then promptly rejected that role once it became clear that it would require him to behave like a board member. Then early Thursday morning, he dropped the bombshell: a proposal to acquire the entire company. All of it, his and his alone, for the low, low price of $43 billion and change.

Musk’s proposal at this point in time may not quite be a “hostile takeover” in the way the tactic is usually described — he is not (yet) trying to do an end-run around Twitter’s board — but it sure is a hostile attempt to take over.

“I am not playing the back-and-forth game,” Musk told Twitter board chairman Bret Taylor of his unsolicited offer. “I have moved straight to the end. It’s a high price and your shareholders will love it.”

But Twitter shareholders do not, in fact, seem to love it. All signs point to nearly everyone hating it, actually. And that’s the real problem for Twitter’s board: It can’t really say yes. It’s also going to have a hell of a time saying no.

What Musk is actually offering

In an SEC filing, Musk proposed to buy all outstanding shares of Twitter he does not already own — a smidge over 90% of the company — for $54.20 per share. That works out to about $43 billion for all of Twitter, roughly speaking.

If the Twitter board of directors approves the deal, the outcome is theoretically straightforward: Every other investor gets $54.20 in cash for each share of Twitter they hold, the company becomes Musk’s, and its days as a publicly traded entity are over.

If a company were making this kind of play, the acquisition would be subject to competition review by regulators in either the Federal Trade Commission or the Justice Department. Musk as an individual, however, is neither a Twitter competitor nor part of its supply chain and is not beholden to the same requirement.

If Twitter’s board of directors does not approve the deal, a world of complicated possibilities opens up (more about that in a minute).

This feels weird

Usually, when an acquisition takes place, either the firm being acquired has put itself up for sale and is actively seeking buyers, or the buyer and the seller have been in quiet discussions for some time. Unsolicited hostile bids aren’t exactly rare — you see them once in a while in almost every sector — but they’re also not exactly common, either.

When activist shareholders enact a takeover, they generally acquire a stake in their target company and then use it to effect change by getting themselves or their proxies onto the board. But Musk was offered a board seat and turned it down, evidently feeling that acting in the interest of all shareholders rather than solely himself wasn’t worth the trouble.

And while “hostile takeover” refers to the mechanism of an acquisition rather than the tone, in this instance, the acrimony fairly drips from every word of the filing. (Any time you write, “this is not a threat,” you’re probably making a threat.) Musk is not looking for a controlling stake in the company; he’s trying to buy it outright.

Musk could — in theory — come up with $40 billion in cash

Musk is currently considered the richest person in the world, with a net worth of around $273 billion as of the beginning of April. That said, you don’t exactly keep $40 billion sitting around in a piggy bank. In order to complete the transaction, Musk would need to turn theoretical cash into actual cash. His filing with the SEC says as much, indicating the proposal to buy Twitter is contingent upon, among other things, “completion of anticipated financing.”

Bloomberg analysts earlier this week speculated in detail about what, exactly, Musk would have to do or sell to raise the funds to buy all of Twitter. At the highest level, he will either have to sell a lot of Tesla stock or secure a substantial loan to get the cash in hand for the deal. And even though wealthy people generally pay rock-bottom interest, rates are still rising by the day.

It’s hard to tell if he wants to run Twitter, though

It’s really hard to tell when Musk is actually serious about anything, but he has repeatedly said he wants to make changes at Twitter.

In the letter to Taylor where he outlined his offer, Musk said, “I invested in Twitter as I believe in its potential to be the platform for free speech around the globe, and I believe free speech is a societal imperative for a functioning democracy.” However, he added, he feels “the company will neither thrive nor serve this societal imperative in its current form,” and said Twitter needs to be taken private to meet those ends.

“Twitter has extraordinary potential,” he concluded. As sole owner, he said, “I will unlock it.”

Musk is a Twitter power user, and he has frequently engaged with his fans on the platform to discuss the ways he thinks it should operate. But some of his ideas for how the site should function would be bad for both Twitter’s service and Twitter’s business, which is likely why the company has yet to implement them. If he owned the company, he would have full control and leadership would have to follow his whims.

In an interview Thursday with TED head Chris Anderson, Musk restated his vague “free speech” aspirations for the platform.

“My strong, intuitive sense is that having a public platform that is maximally trusted, and broadly inclusive, is extremely important to the future of civilization,” Musk told Anderson. Calling Twitter the “de facto town square,” he added, “It’s really important that people have both the reality and the perception that they are able to speak freely within the bounds of the law.”

Several conservative commentators and politicians, who often accuse Twitter of “silencing” them when the platform enforces its rules and terms of service, broadly expressed enthusiasm for Musk’s proposed changes.

If this is a pump-and-dump attempt, it’s not going well

Musk is not above goofing around with shares and investments when he feels like it. Most notably, in August 2018 he tweeted that he had reached a deal with an investor to take Tesla private at a value of $420 per share. At the time, Tesla shares were mostly trading between $50 and $70. The SEC charged him with securities fraud over the fiasco. Although Musk reached a settlement with the SEC a short time later, he and the agency have continued to butt heads.

He also broke SEC regulations when he purchased his initial 9% stake in Twitter, and another Twitter shareholder is already suing him over it, alleging the way in which Musk made and failed to disclose his holdings constitutes securities fraud.

Musk wrote very clearly to Twitter’s chairman that he reserves the right to walk away entirely from the offer. “If the deal doesn’t work,” he wrote, “given that I don’t have confidence in management nor do I believe I can drive the necessary change in the public market, I would need to reconsider my position as a shareholder.”

If Musk’s attempt to take the company over made its value rise, he could sell off his 9% investment and be much richer for it. And after the roller coaster Musk has put Twitter through this month, the board might honestly be just as happy to see the back of him.

But if it is a pump-and-dump, it doesn't seem to be working. News of Musk's takeover proposal broke a little after 6 a.m. ET Thursday. Twitter shares did spike briefly, opening at $48.36 as compared to $45.86 at market close the day before. After 10 a.m., however, shares were trading under $47 again. During the day, they dropped briefly below $45 before closing at $45.08 — lower than Wednesday’s close.

This is likely an offer the board can refuse

Is the board going to go for it? All signs point to “no.”

Twitter’s board so far has done exactly what it is required to do: It issued a statement confirming receipt of the offer and said it will “carefully review the proposal to determine the course of action that it believes is in the best interest of the Company and all Twitter stockholders.”

The company probably didn’t want to end up here. If it did, Twitter wouldn’t have offered Musk a board seat to begin with, or conditioned that seat on him not buying more than 14.9% of the company. And as Protocol’s own Owen Thomas pointed out Monday, the appointment of a director with a history of breaking securities law, of allowing racism and sexism to run rampant inside his companies, and of proposing platform changes that would undermine Twitter’s efforts to limit toxic content was met with significant concern among employees.

Shareholders may not always care what the company rank-and-file think about a deal, but the decline today in Twitter’s stock price signals that in this case, investors are likewise not particularly impressed, which in turn would not motivate the board to accept the offer.

Both financial analysts and industry observers seem to agree. JPMorgan said earlier on Thursday that it did not expect the board to accept Musk’s offer, and “sources familiar with the situation” told The Information much the same. At least one longtime Twitter investor has also already said publicly — in a tweet, naturally — he plans to reject the offer. (Musk was unimpressed with that statement.) Even tech entrepreneur Mark Cuban said he thinks Twitter will “do everything possible not to sell the company.”

No, seriously: This is how they could say no

The board has a fiduciary duty to its shareholders to maximize the company’s value. To that end, it must present reasons for turning down Musk’s offer, and as much as “he sows chaos and makes immature jokes” might suit a layman, Twitter will need to provide a dollars and cents argument.

The most common reason to turn down a takeover offer is that it undervalues the target company. Twitter’s board may argue that Musk’s $54.20 per share offer is insufficient and does not match the company value, and they might have some justification. (Although some analysts, including Goldman Sachs, have recently disagreed.)

Musk’s offer does represent a significant premium over Twitter’s average 2022 share price, but those prices reflect the market overall, which — whether you’re looking at Dow Jones, Nasdaq or your own beleaguered 401(k) — has been softer for most of 2022 so far than in the previous two years. In February 2021, when the market was also stronger, Twitter reached an all-time high of more than $77 per share, and it spent much of 2021 trading over $60.

Twitter could also argue that the financing for the deal is unlikely to materialize, although given Musk’s extensive net worth, that could be a stretch. In Thursday’s TED interview, Musk said, “I have sufficient assets,” adding, “I can do it if possible.”

It’s theoretically possible Musk could simply say, “OK, thanks, I tried,” and walk away if the board turns him down, but that seems unlikely. If Twitter finds his offer is insufficient, Musk could always offer more. He said his terms were final, but that statement is not binding, and plenty of “final offers” in history have still been negotiated.

Musk said during Thursday’s interview that he has an unspecified backup plan if Twitter rejects his offer, adding, “I don’t like to lose.”

Twitter could also try pursuing a sale to another entity, if one were to appear, that it could argue would be a better fit for the company and lead to a better profit for its investors.

Nearly all of Twitter’s top 10 shareholders —with the exceptions of Musk and former CEO Jack Dorsey — are institutional investors, with Vanguard Group being the largest. If it or any other shareholders feel that Twitter should take the offer, they could file suit to try to force the issue. Or maybe they'll just take their cue from Musk, and tweet through it.

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