By Lauren Dickstein
I. Introduction: About M&A
Mergers and acquisitions, commonly known as M&A, refers to the process of combining different companies through buying and selling.[1] While M&A transactions take place in various forms or “deal structures,” they all involve the transfer of ownership of part or all of a business.[2]
For example, a company may merge with another company to make a new company, buy and absorb another company altogether, acquire all or some of another company’s stock or assets, or make a tender offer to another company’s shareholders for their stock.[3]
Companies often engage in M&A transactions to achieve synergy, whereby the new company, or company that “survives,” is greater than the two former separate entities.[4] Synergy occurs when two companies that generally do the same thing are combined.[5] For example, Disney achieved synergy when it acquired 21st Century Fox in 2019 because both media companies engaged in entertainment, film, and TV production, therefore making Disney more powerful than either separate company prior to the transaction.[6] However, antitrust concerns proliferate the M&A space in several ways.[7] Specifically, consolidation of two entities may create a market monopoly—potentially hindering consumer choices.[8] If antitrust authorities, such as the Federal Trade Commission (“FTC”), believe there is too great a risk of a monopoly or anti-competitive behavior, they can potentially block any M&A transaction from taking place.[9]
Several factors drive M&A transactions, but there are a few essential factors as discussed below. First, buyers engage in acquisitions because they want to expand in their market either geographically or with a vaster product offering.[10] Further, asset acquisition drives M&A because buyers may look for physical and/or technological assets like intellectual property that might otherwise be difficult to obtain or take a long time to produce.[11] Sometimes, buyers also look for assets in the form of human capital or employees who would be able to generate more beneficial assets.[12] Additional reasons involve acquiring a broader customer base and diversification through increasing the types of products or services sold or increasing the scope of the business by acquiring skills or a type of product the buyer company lacks.[13] As a seller, incentives to engage in M&A transactions include liquidity and the opportunity for regulatory change.[14] Sellers typically also have personal reasons or motivations driving the transaction.[15]
M&A is often driven by attractive opportunities, such as when a larger company that may lack in technical innovation decides to buy a smaller company that excels in such innovation.[16] Further, attractive valuations drive M&A, as a company seemingly undervalued at a given time could create an opportunity for a buyer to capitalize on their investment.[17] Finally, one of the most significant driving factors is whether capital is available, which involves a buyer’s ability to obtain funding for a transaction through either equity, debt, or capital providers such as banks or private equity funds.[18] M&A also poses several risks including the miscalculation of synergies, expensive litigation especially in the antitrust area, and short-term detraction from a company’s operations since M&A can be exceptionally time-consuming for management to negotiate.[19]
Moreover, despite the interchangeability between the terms “mergers” and “acquisitions”—the two are uniquely different.[20] There are three basic deal structures behind any M&A transaction. First, a merger or direct merger is the simplest structure in which two companies, typically of equal size, consolidate to form a new company, the survivor.[21] There can only be one survivor in a merger, and this company will assume a new name.[22] The survivor absorbs all of the assets and liabilities of both separate companies.[23] The assumption of assets and liabilities in mergers is one reason why a different deal structure may be preferred.[24] Further, mergers may sometimes be challenging to negotiate because of their approval process, which requires approval from both selling and acquiring companies’ boards of directors and shareholders under the MBCA.[25]
The second M&A deal structure is an asset purchase. In asset purchases, the company being acquired, or the “target,” is selling some or all of its assets but not the legal entity of the company.[26] Here, the acquirer purchases some or all of the target company’s assets using cash or stock.[27] When asset purchase transactions are complete, the legal entities of the two companies have not changed, and the companies remain separate—there is simply an exchange of assets for cash or assets for stock that has occurred.[28] Asset purchases typically happen when a company (the acquirer) decides it wants less cash and more assets, and when a target company decides it wants more cash and fewer assets.[29] The acquirer only purchases the assets it desires.[30] Therefore, the target is able to charge a premium for its assets because the target is left with its liabilities.[31] A common motivation behind this deal structure is to avoid the transfer of liabilities.[32] Further, shareholders are not typically involved in the approval process of an asset purchase, rather this transaction is for the target’s management or board of directors to effectuate.[33] The target company’s shareholders and board of directors vote only if the transaction leaves the company “without a significant continuing business activity.”[34]
The third M&A deal structure is a stock purchase. In stock purchases, the acquiring company uses cash or stock to purchase some or all of the target company’s stock.[35] While there are still two separate entities at the end of the transaction, the acquirer may become the parent company of the target if it acquires enough of the target’s stock.[36] Stock purchases are sometimes preferred over mergers because the two companies remain separate, which is often beneficial for branding and reputational purposes.[37] Further, because the target company still exists as a subsidiary of the parent acquirer, the acquirer and its assets are not exposed to the target’s liabilities.[38] To complete a stock purchase, approval of the target’s board of directors is not required because the shareholders independently decide whether or not to sell their shares.[39] Therefore, there is no “shareholder vote,” since the shareholders do not vote as a group.[40]
Further, tender offers are completed through the stock purchase structure. Tender offers are a vehicle for an interested party to circumvent a target company’s board of directors which may not cooperate in the transaction.[41] Tender offers usually make a transaction “hostile” because the acquirer goes directly to the target’s shareholders after the target’s board of directors rejected or resisted the offer.[42] Like traditional stock purchases, after a tender offer is made, each target shareholder individually decides whether they want to tender their shares.[43]
A target company’s board of directors is often hesitant to accept an offer because it likely means that the acquirer, after gaining control, will replace the target company’s existing directors and subsequently officers, since the board elects a company’s officers.[44] This happens because shareholders have the right to vote on who comprises the board of directors, and often the majority or controlling shareholder has the ability to determine the entire board due to majority voting.[45] Therefore, the ability to control who comprises a company’s board of directors is one of the main reasons why individuals or investors seek control or the controlling shares of a company.[46]
II. The Twitter & Musk Merger
Elon Musk’s acquisition of Twitter in 2022 presents an extremely interesting case study to analyze in the context of M&A transactions for many reasons. This transaction was highly publicized in the media, discussed by the public, and continues to pose risks to consumers. In addition, the details of this transaction are practically unprecedented in the industry, including the deal’s short timeline, high purchase price, and potential concern for consumers given Musk’s influence and control as he now owns one of the largest social media platforms.
The Twitter Proxy Statement contains most of the exciting details about how the deal transpired.[47] A proxy statement is a filing required by the Securities Exchange Commission (“SEC”) when public companies, like Twitter, engage in an activity that requires a shareholder vote, such as getting acquired.[48] When shareholders are required to vote on a proposed merger, the proxy statement is called a merger proxy, or a merger prospectus if the shareholders are obtaining any of the acquirer’s stock.[49] Here, Musk’s deal to acquire Twitter was an all-cash transaction,[50] so Twitter, as a public target company, had to file a merger proxy with the SEC following the announcement of the deal.[51] Merger proxies contain various elements about the transaction, including the deal terms and consideration, how dilutive securities will be treated, and breakup fees, as well as a detailed account of the background of the merger, fairness opinion, the target’s financial projections, and the compensation and treatment of target’s management after the deal is completed.[52] Therefore, the Twitter Proxy Statement, specifically the Background of the Merger section, details the transaction.[53]
It all began in March 2022, when Musk negatively Tweeted about Twitter’s business operations, platform, and content moderation policies.[54] On March 26, 2022, Musk contacted Jack Dorsey, Twitter’s founder and former-CEO, to discuss Twitter’s future.[55] Originally, Musk showed interest in joining the Twitter Board of Directors.[56] On March 27, 2022, Musk met with the Chairperson of the Twitter Board and Twitter’s CEO to discuss Musk’s interest in joining the Board, however, Musk also stated that he was considering “various options” with respect to his current ownership stake, including seeking to take Twitter private or starting a competitor company to Twitter.[57] Musk made Dorsey aware that he had purchased over 5% of Twitter’s common stock on the open market,[58] which Musk was supposed to publicly disclose through a Schedule 13D filing with the SEC, but Musk failed to timely file.[59] The SEC’s toehold disclosure rule exists to make shareholders cognizant of someone obtaining—potentially as part of a hostile takeover attempt—5% or more shares or a substantial amount of control in their company.[60]
It was not until April 4, 2022, that Musk publicly disclosed his beneficial ownership of about 9.2% of Twitter’s common stock.[61] At this point, Musk had just been offered a position on Twitter’s Board.[62] Twitter’s Board was put in a difficult position because Musk was increasing his ownership stake in Twitter while negatively Tweeting and threatening to take Twitter private. Therefore, the Board agreed to offer Musk a position on the Board because there was little cost to doing so, plus being on the Board would trigger certain fiduciary duties of Musk to Twitter.[63] The Board offered Musk the position contingent upon the completion of customary onboarding procedures requiring Musk to enter a cooperation agreement with standstill provisions limiting Musk’s ability to make public statements about Twitter—but Musk specifically disagreed to obeying this provision.[64] Shortly after, on April 9, 2022, right before Musk was appointed to the Twitter Board, Musk announced that he would not be joining the Board, and that he would instead be making an offer to “take Twitter private.”[65]
A “going private” transaction refers to a transaction or series of transactions that converts a publicly traded company, with its shares trading freely on stock exchanges, to a private company, in which the company’s shares are not traded in the open market.[66] The Twitter Board was originally threatened by Musk’s statements of taking Twitter private because it meant Musk would gain complete control of Twitter, thereby allowing him to make any hiring or firing decisions including replacing the entire Board. On April 13, 2022, Musk delivered a non-binding proposal to acquire Twitter for $54.20 per share— a $44 billion offer.[67] This price was a 54% premium over when Musk began investing in Twitter and a 38% premium over when Musk’s investment was publicly announced.[68]
However, in the week following this proposal, Musk’s Tweets made the Twitter Board believe Musk might commence an unsolicited tender offer.[69] Out of fear of a tender offer, a hostile attempt to take over a company by offering to buy shares at a specific price and time directly from the company’s shareholders,[70] the Twitter Board adopted a shareholder rights plan, also known as a poison pill.[71] This rights plan provided for a distribution of rights to shareholders that would become exercisable if an anyone or any entity acquired beneficial ownership of 15% or more of Twitter’s outstanding common stock in a transaction that is not approved by the Twitter Board.[72] As stated in Section I, transactions structured as tender offers or stock purchases do not require board approval.
Moreover, the adoption of the shareholder rights plan illustrates several features of the various deal structure discussed in Section I of this article. Musk’s proposal of April 13, 2022 to acquire Twitter was a “seller friendly” merger agreement that Musk was even willing to sign that very night.[73] In mergers, as stated in Section I, board approval and shareholder approval is required from both the target company and the acquirer. In a merger, each shareholder does not get to decide for themselves whether or not to accept the offer; rather, the board must first approve the transaction and then the shareholders must vote as a group to approve it.[74] Under Delaware law, an absolute majority vote is required for shareholder approval (e.g., 51 shares if there are 100 outstanding shares).[75] Under the MBCA, a simple majority vote is required by shareholders, which is the majority of shares voting at a meeting with a quorum.[76] A quorum is the minimum level of attendance or interest that must be present in order for a corporate meeting to take place.[77] The MCBA provides that a majority of the votes entitled to be cast on the matter constitutes a quorum.[78]
Here, in order to keep “Twitter” alive as a brand, Musk used a merger structure wherein Musk formed a subsidiary holding company to merge with Twitter, so that Twitter could be the survivor and Musk the sole owner of the parent holding company.[79] This “reverse triangular merger” has the same approval requirements as direct mergers,[80] however, due to the separation between Musk’s holding company (the parent) and Twitter (the wholly owned subsidiary), Musk’s parent holding company is insulated from Twitter’s liabilities.[81] Most public company acquisitions take the form of a reverse triangular merger because the acquirer often wants the target to survive for branding and tax purposes while also maintaining separate liabilities.[82]
The merger structure contrasts with that of a stock purchase, the structure through which a hostile tender offer occurs, because once a tender offer is made, it is up to each shareholder to independently decide whether or not to tender their shares.[83] Further, if enough shareholders tender their shares, the potential acquirer can gain control through either electing a different board of directors (if 50% of the company’s shares were tendered), or through a short-form merger.[84] Short-form mergers are mergers completed without the formal procedures, such as a board and shareholder vote, and can automatically occur when a potential acquirer owns at least 90% of the target’s shares.[85]
On April 25, 2022, after consulting with financial advisors and lawyers, and mere days after Musk’s April 13th offer, the Twitter Board accepted Musk’s $44 billion proposal.[86] The Board had fiduciary duties to maximize value for Twitter’s shareholders, and after “thoughtful and comprehensive” analysis with a “deliberate focus on value, certainty, and financing,” the Board concluded that $44 billion was the best offer that would give Twitter’s shareholders a “substantial cash premium.”[87] Further, Musk made the offer in a take-it-or-leave-it way, as he threatened that the $54.20 per share was his “best and final offer,”[88] and warned Twitter that if it did not accept the offer, Musk would “exit [his] position,” meaning he would dump his existing stock (the 9.2% Musk bought on the open market) to plummet Twitter’s stock price.[89]
III. Musk Tries Backing Out of the Deal
Musk originally made the astounding $44 billion offer for Twitter because he thought Twitter “will neither thrive nor serve this societal imperative in its current form.”[90] The “societal imperative” Musk was referring to is his belief that Twitter could be “the platform for free speech around the globe,” which Musk thinks is imperative for a “functioning democracy.”[91] Consequently, Musk was confident that Twitter “need[ed] to be transformed as a private company.”[92] Private companies can typically focus on long-term objectives without the worry of pleasing shareholders in the short term.[93] Further, the $44 billion offer was an astronomical price to pay for Twitter given the current price its stock was trading at and the recent market turndown. Musk’s offer is one of the highest prices an individual has ever paid for a tech company, dwarfing global acquisition prices for tech companies which averaged $214 million in 2020.[94]
Musk likely realized the absurdity of his offer and attempted to back out of the deal. On May 13, 2022, Musk Tweeted that the deal was “temporarily on hold” pending confirmation of Twitter’s claim that the number of spam or fake Twitter accounts is less than 5% of Twitter users.[95] Shortly after, on July 8, 2022, Musk notified Twitter that he is terminating the Merger Agreement due to Twitter’s alleged breach of the Agreement’s provisions and Twitter’s alleged false and misleading representations to Musk, upon which he relied.[96] However, Twitter did not accept Musk’s termination.[97] Musk’s offer had already caused the Twitter stock price to decline by over 12% and Musk was embroiled in a class-action lawsuit by Twitter shareholders for stock manipulation.[98] Twitter responded to Musk’s termination letter by stating that the purported termination was “invalid and wrongful” because Musk “knowingly, intentionally, willfully, and materially breached the Agreement,” therefore Twitter will pursue its right to specifically enforce Musk’s obligation under the contract.[99]
On July 12, 2022, Twitter sued Musk in Delaware Chancery Court to enforce the terms of the $44 billion contract.[100] The court expedited the timeline for the case, setting a five-day trial in October.[101] However, as Musk faced depositions and an unknown outcome with the Delaware court, which is typically pro-contract enforcement, Musk tried to negotiate for a lower purchase price by about 30%, valuing Twitter at $31 billion instead of $44 billion.[102] When Twitter refused to accept the discounted price, after a month of trying to terminate the deal and reduce the price, Musk finally agreed to go through with the original $44 billion transaction if Twitter stopped its legal battle.[103] The deal closed shortly after on October 28, 2022, and Musk enacted massive layoffs, cutting approximately half of Twitter’s 7,500 employees in November 2022.[104]
IV. Doing Due Diligence
The primary cause of Musk’s saga was his failure to do proper due diligence. Due diligence is an integral part of all M&A transactions.[105] Due diligence refers to the process of investigation, verification, and/or audit of a potential deal to assess all risks and confirm facts and financial information during an M&A transaction.[106] This process is typically conducted by lawyers on both the buyer’s and seller’s sides before signing any M&A agreements.[107] Due diligence allows buyers to make informed decisions about whether to proceed with certain transactions and for what price.[108] In Musk’s situation, conducting proper due diligence would have let him uncover the uncertainties about bots and scam Twitter accounts earlier on in the deal, thereby allowing Musk the options to adjust the offer price to reflect his concerns, include provisions in the Agreement to provide Musk with a better out, or even decide not to make an offer at all.[109] However, there was little to no due diligence conducted on behalf of Musk, as Judge Kathleen St. J. McCormick stated during the Delaware court proceedings, “We don’t know what would have happened in diligence because there wasn’t any due diligence, right?”[110]
Musk did not pursue meaningful due diligence because he “[did]’nt care about the economics at all,” and rather was solely focused on acquiring Twitter to better “future civilization.”[111] Musk’s disregard to properly navigate the transaction landed him in a lot of chaos. Shortly after he gained control of Twitter, over a third of Twitter’s top marketers canceled their advertising agreements with Twitter and Musk laid off 50% of Twitter’s workforce—all of which may have been avoidable if Musk had taken the time necessary to understand the media platform and its financial information and viability before making an offer with few outs.[112]
V. Conclusion: Possible Implications of the Twitter Deal
The Twitter and Musk transaction is unprecedented from its timeline to purchase price to deal terms. From the moment Musk first contacted Twitter’s Jack Dorsey about his interest in being on Twitter’s Board, to the time Twitter accepted Musk’s $44 billon offer, only one month had passed.[113] There was practically no negotiation, rather Musk unanimously decided to make the extravagant offer.[114] This transaction is also unique because Musk went directly to Twitter’s founder and Board with his demands, rather than having Musk’s attorneys initiate the discussion with Twitter’s management—surely, any non-celebrity would have endured a lengthier process before speaking directly with Twitter’s Board.[115] Moreover, the Merger Agreement was extremely friendly to Twitter and left virtually no way for Twitter’s Board to deny the deal without breaching its fiduciary duties, nor any meaningful way for Musk to escape the contract without breaching its terms.[116]
This deal also raises many concerns about Musk’s influence, given that he now controls one of the largest social media platforms. Musk is already one of the wealthiest people, and with a “personal mouthpiece” like Twitter, it is of great concern that Musk could use this platform to shape public opinion to suit Musk’s own interests.[117] Musk has always been the “architect of his own image,”[118] therefore his control of Twitter logically explains Musk’s desire to control how he is perceived in the media.[119] Even prior to Musk’s acquisition of Twitter, Musk used Twitter to boost publicity for his other companies Tesla and SpaceX.[120] However now, concerns are expanding beyond Musk’s desire to promote his own brands, and into whether Musk will have the ability to silence voices or views with which he disagrees, while magnifying those views with which he does agree.[121] This raises many issues regarding the First Amendment right to freedom of speech, as spectators in the legal community are concerned of the dangers that accompany any private actor bearing “so much control over the boundaries of our political speech online.”[122]
In short, there is a definitive need for concern given the great potential for power and influence Musk holds as one of the world’s wealthiest people and controller of Twitter. Despite Twitter having fewer active users than Facebook and Instagram,[123] Twitter is commonly understood to be a critical news source and place of public discourse where politicians, celebrities, and companies voice their political and social views.[124] It is also of concern that Twitter is facing market downturn and given Musk’s reputation for being unpredictable and quick to act, it is unclear what turns Twitter might take in the upcoming years. Finally, it is important to recognize the importance of the due diligence process and how it could have prevented much of the chaos that ensued as a result of Musk’s interest in Twitter.
[1] Mergers & Acquisitions, Cornell Law School, https://www.law.cornell.edu/wex/mergers_acquisitions (last visited Mar. 28, 2023).
[2] Id.
[3] Adam Hayes, Margaret James & Vikki Velasquez, What Are Mergers and Acquisitions (M&A)?Investopedia (Mar. 25, 2023), https://www.investopedia.com/terms/m/mergersandacquisitions.asp.
[4] Jennifer J. Johnson & Mary Siegel, Corporate Mergers: Redefining The Role of Target Directors, 136 U. Pa. L. Rev. 315. (Dec. 1987)
[5] Id.
[6] Emily St. James, Here’s What Disney Owns After the Massive Disney/Fox Merger, VOX (Mar. 20, 2019), https://www.vox.com/culture/2019/3/20/18273477/disney-fox-merger-deal-details-marvel-x-men
[7] Ronald W. Davis, Antitrust Analysis Of Mergers, Acquisitions, And Joint Ventures In The 1980s: A Pragmatic Guide To Evaluation of Legal Risks, 11 Del. J. Corp. L. 25 (Fall 1986).
[8] Id.
[9] Id.
[10] Johnson & Siegel, supra note 4.
[11] What Are the Major Factors That Drive Mergers and Acquisitions? iKadre (Jun. 3, 2021), https://ikadre.com/what-are-the-major-factors-that-drive-mergers-and-acquisitions/.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Cass Business School & Intralinks, Attractive M&A Targets: Part 1 What Do Buyers Look For? Intralinks (2016), https://www.mergermarket.com/assets/Attractive_M&A_Targets_PART%201_v2.pdf.
[17] Id.
[18] Id.
[19] Id.
[20] Adam Hayes, supra note 3.
[21] Lemuel J. Lim, Basic Structures in Mergers and Acquisitions (M&A): Different Ways to Acquire a Small Business, Genesis Law Firm PLLC, https://www.genesislawfirm.com/asset-acquisition-stock-purchase-and-merger-structures (last visited Mar. 28, 2023).
[22] Id.
[23] Id.
[24] Id.
[25] MBCA § 12.02.
[26] Lim, supra note 21.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] MBCA §12.02(a).
[34] Id.
[35] Lim, supra note 21.
[36] Id.
[37] Id.
[38] Id.
[39] MBCA §6.21(f)(1).
[40] Tender Offer vs. Merger, WallStreetPrep, https://www.wallstreetprep.com/knowledge/tender-offer-vs-merger/ (last visited Mar. 29, 2023).
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] Schedule 14a Proxy Statement Pursuant to Section 14(a) of The Securities Exchange Act of 1934, Twitter, Inc., https://www.sec.gov/Archives/edgar/data/1418091/000114036122014049/ny20001921x3_def14a.htm (hereinafter Twitter Proxy Statement).
[48] M&A Filings, WallStreetPrep, https://www.wallstreetprep.com/knowledge/deal-documents-go-find-information-ma-transactions/ (last visited Apr. 16, 2023).
[49] Id.
[50] Elon Musk to Acquire Twitter, Cision PR Newswire (Apr. 25, 2022), https://www.prnewswire.com/news-releases/elon-musk-to-acquire-twitter-301532245.html.
[51] M&A Filings, supra note 48.
[52] Id.
[53] Twitter Proxy Statement, supra note 47.
[54] Id.
[55] Id.
[56] Id.
[57] Id.
[58] Id.
[59] Modernization of Beneficial Ownership Reporting, U.S. Securities And Exchange Commission, https://www.sec.gov/files/33-11030-fact-sheet.pdf (last visited Apr. 16, 2023).
[60] Id.
[61] Twitter Proxy Statement, supra note 47.
[62] Id.
[63] Id.
[64] Id.
[65] Id.
[66] Jason Fernando, Thomas J. Catalano & Katrina Munichiello, Going Private: Definition, How It Works, Types and Example, Investopedia (Dec. 6, 2022), https://www.investopedia.com/terms/g/going-private.asp.
[67] Twitter Proxy Statement, supra note 47.
[68] Id.
[69] Id.
[70] Tender Offer vs. Merger, supra note 40.
[71] Twitter Proxy Statement, supra note 47.
[72] Id.
[73] Id. at 55.
[74] MBCA § 12.02.
[75] DGCL § 141
[76] MBCA §§ 11.04(e), 7.25(b).
[77] Adam Hayes, What Is a Quorum? Definition, How It Works, Ways to Reach One, Investopedia (Sept. 22, 2022), https://www.investopedia.com/terms/q/quorum.asp.
[78] MBCA § 7.25(b).
[79] Twitter Proxy Statement, supra note 47.
[80] MBCA § 12.02.
[81] Will Kenton & David Kindness, Reverse Triangular Merger Overview and Example, Investopedia (Nov. 30, 2020), https://www.investopedia.com/terms/r/rtm.asp.
[82] Id.
[83] Adam Hayes, Gordon Scott & Timothy Li, Tender Offer Definition: How It Works, With Example, Investopedia (Apr. 15, 2022), https://www.investopedia.com/terms/t/tenderoffer.asp.
[84] Short-Form Merger, West Thomson Reuters Practical Law, https://content.next.westlaw.com/practical-law/document/I1559f760eef211e28578f7ccc38dcbee/Short-Form-Merger?viewType=FullText&transitionType=Default&contextData=(sc.Default)&firstPage=true (last visited Apr. 16, 2023).
[85] Id.
[86] Twitter Proxy Statement, supra note 47.
[87] Elon Musk to Acquire Twitter, supra note 50.
[88] Twitter Proxy Statement, supra note 47 at 48.
[89] Id. at 55.
[90] Id. at 48.
[91] Id. at 48.
[92] Id.
[93] Crystal Vogt, The Advantages of Being a Private Company, Chron (Jan. 28, 2019), https://smallbusiness.chron.com/advantages-being-private-company-20236.html.
[94] Statista Research Department, Number of Merger and Acquisition Transactions in the United States in 2020 and 2022,Statistica (Jan. 30, 2023), https://www.statista.com/statistics/245977/number-of-munda-deals-in-the-united-states/.
[95] Musk, Elon (@elonmusk), “Twitter Deal Temporarily on Hold Pending Details Supporting Calculation that Spam/Fake Accounts Do Indeed Represent Less Than 5% of Users” May 13, 2022. Tweet.
[96] Letter from Elon Musk to Twitter, Inc. July, 8, 2022, https://www.sec.gov/Archives/edgar/data/1418091/000110465922078413/tm2220599d1_ex99-p.htm.
[97] Form 8-K, Current Report Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934, https://www.sec.gov/Archives/edgar/data/1418091/000119312522191303/d370677ddefa14a.htm.
[98] Lora Kolodny, Twitter Shareholders Sue Elon Musk and Twitter Over Chaotic Deal, CNBC (May 26, 2022), https://www.cnbc.com/2022/05/26/twitter-shareholders-sue-elon-musk-and-twitter-over-chaotic-deal.html.
[99] Form 8-K, supra note 97.
[100] Twitter v. Musk Complaint, https://www.documentcloud.org/documents/22084453-twittermuskcomplaint.
[101] Kate Conger & Lauren Hirsch, Elon Musk Completes $44 Billion Deal to Own Twitter, NYTimes (Oct. 27, 2022), https://www.nytimes.com/2022/10/27/technology/elon-musk-twitter-deal-complete.html.
[102] Kate Conger & Michael S. Schmidt, Elon Musk Offered to Buy Twitter at a Lower Price in Recent Talks, NYTimes (Oct. 5, 2022), https://www.nytimes.com/2022/10/05/technology/elon-musk-twitter-discount.html.
[103] Amendment No. 12 to Schedule 13d Under the Securities Exchange Act of 1934 https://www.sec.gov/Archives/edgar/data/1494730/000110465922105787/tm2227435d1_sc13da.htm; Kate Conger & Lauren Hirsch, supra note 101.
[104] Victor Ordonez & Melissa Gaffney, Twitter Begins Layoffs, Cuts to Affect 50% of Staff, ABC News (Nov. 4, 2022) https://abcnews.go.com/Business/twitter-sends-email-employees-announcing-layoffs-friday/story?id=92635005.
[105] CFI Team, Due Diligence, Corporate Finance Institute (Mar. 14, 2023) https://corporatefinanceinstitute.com/resources/valuation/due-diligence-overview/.
[106] Id.
[107] Id.
[108] Id.
[109] Id.
[110] Karen McCandless, Due Diligence Lessons from Musk’s Tumultuous Twitter Takeover, Bracken,
https://www.thebrackengroup.com/blog/life-science-due-diligence-lessons-from-elon-musk-twitter (last visited Mar. 29, 2023).
[111] Zahra Tayeb, Elon Musk Says He Doesn’t Care About the Economics of Buying Twitter But Wants to Create a Public Platform That is ‘Maximally Trusted and Broadly Inclusive,’ Business Insider (Apr. 23, 2022), https://www.businessinsider.com/elon-musk-buying-twitter-doesnt-care-economics-trusted-public-platform-2022-4.
[112] Karen McCandless, supra note 110.
[113] Twitter Proxy Statement, supra note 47.
[114] Id.
[115] Id.
[116] Id.
[117] Alan Ohnsman, Rupert Murdoch 2.0: How Twitter Gives Elon Musk The Power To Shape Public Opinion, Forbes (Nov. 3, 2022), https://www.forbes.com/sites/alanohnsman/2022/11/03/elon-musk-twitter-social-media-baron/?sh=63d976d92873.
[118] Caroline O’Donovan, Charlie Warzel & Ryan Mac, Elon Musk Has Always Been At War With The Media, BuzzFeed News (Jun. 21, 2018), https://www.buzzfeednews.com/article/carolineodonovan/elon-musk-tesla-spacex-war-press-media.
[119] Alan Ohnsman, supra note 117.
[120] Id.
[121] Id.
[122] Id.
[123] Meltem Odabas, 10 Facts About Americans and Twitter, Pew Research Center (May 5 2022), https://www.pewresearch.org/fact-tank/2022/05/05/10-facts-about-americans-and-twitter/.
[124] Alan Ohnsman, supra note 117.
