Is Elon Musk Actually Going to Buy Twitter? Can He Just Walk Away?

There are signs Elon Musk may be getting cold feet a few weeks after he agreed to buy Twitter Inc. for approx. $61 billion.

The billionaire Tesla Inc. chief executive recently tweeted that the deal is “on hold” until he gets more information about the portion of the social-media platform’s users that are spam accounts. Twitter has for years said in filings that it estimates they represent less than 5% of its daily active users, though has cautioned the number could be higher.

This is all happening as technology shares—including those of Tesla, which Mr. Musk is relying on to fund the deal—have been under pressure. Twitter’s board, meanwhile, says it intends to enforce the agreement, which calls for him to pay US$54.20 a share.

Here’s what to know about how things could play out.

Can either side walk away at any time?

Not easily. Both sides signed a merger agreement, a detailed document stipulating exactly what each will do to ensure the agreed-upon deal closes, and what legal rights each has if the other doesn’t hold up its end of the bargain. It is similar to going under contract on a house.

In this case, Mr. Musk was motivated to quickly negotiate a deal, and in doing so, agreed to a contract with several seller-friendly components. For example, he waived the detailed due diligence that buyers typically perform on targets (think of it like skipping a home inspection), and gave Twitter the right to sue him to follow through with the deal, a legal clause known as “specific performance.”

Both sides also agreed to pay each other a US$1 billion breakup fee if they cause the deal not to happen for certain reasons, but specific scenarios must unfold for those to become relevant. Also called termination fees, the penalties are meant to deter parties from breaking agreements and address the inconvenience and cost of a failed deal.

Can Mr. Musk just pay Twitter the $1 billion breakup fee to get out of the deal?

Not necessarily. There are three clear scenarios in which this could happen, and possibly more. If regulators try to block the deal or the debt financing falls through, he would likely have an out. The third is if he can show Twitter has significantly changed for the worse since the deal was agreed upon, under a concept known as a “material adverse effect.”

If Mr. Musk believes Twitter’s accounting of spam accounts was inaccurate when he signed the deal, his lawyers could attempt to litigate that issue in various ways, including as a material adverse effect, or possibly by alleging that Twitter misrepresented information in its filings. It is unclear whether they would succeed, though it could open the door to settlement discussions.

What will Twitter do?

Twitter’s board feels strongly that the two sides had an agreement that remains in effect and is the best option for shareholders. “We intend to close the transaction and enforce the merger agreement,” it said.

For that reason, Twitter appears willing to sue for specific performance if it comes to that, meaning it could try to force Mr. Musk to follow through with the deal or provide what it sees as fair compensation. In practice, that can be difficult but often opens the door to settlement discussions.

The agreement between the two sides also requires Mr. Musk to avoid disparaging Twitter and its representatives on the platform and his recent tweets could have crossed that line. While Twitter could challenge the behaviour, it appears more focused at the moment on closing the deal rather than launching relatively minor litigation that could run the risk of complicating things further.

What is going to happen?

It is too early to say. The deal could still happen, and could close as soon as this winter if both sides keep moving forward. Another possible outcome is that the two sides negotiate a settlement, especially if it becomes clear that Mr. Musk is intent on getting out of the deal or trying to lower the price.

Even when contract terms are clearly spelled out, more often than not deal clashes end in negotiated settlements that can include a price cut or one-time payments.

In 2020, luxury-goods conglomerate LVMH Moët Hennessy Louis Vuitton SE tried to back out of a deal to buy Tiffany & Co. for US$16.2 billion after the pandemic hurt demand for high-end jewellery. Tiffany sued to enforce the agreement and LVMH countersued, arguing the business had been so deeply damaged that their original agreement was no longer valid.

The two sides later agreed to cut the price by a relatively modest US$430 million and settle related litigation.

Could a recession be the best time to launch a tech startup?

A recent study suggests that is the case. The authors found that tech startups that began operations during the 2007-09 recession—and received their first patent in that time—tended to last longer than tech startups founded a few years before or after. And those recession-era companies also tended to be more innovative than the rest.

“The effect of macroeconomic trends is not always intuitive,” says Daniel Bias , an assistant professor of finance at Vanderbilt University’s Owen Graduate School of Management, who co-wrote the paper with Alexander Ljungqvist, Stefan Persson Family Chair in Entrepreneurial Finance at the Stockholm School of Economics.

Drawing on data from the U.S. Patent and Trademark Office, the authors examined a sample of 6,946 tech startups that launched and received their first patent approval between 2002 and 2012.

One group—about 5,734 companies—launched and got their patent outside of the 2007-09 recession. Of those, about 70% made it to their seventh year. But the startups that launched and got their first patent during the recession—about 1,212 companies—were 12% more likely to be in business in their seventh year.

These recession-era firms were also more likely to file a novel and influential patent after their first one. (That is, a patent the researchers determined was dissimilar to patents in the same niche that came before it, but similar to ones that came after it.)

So, why did these recession-era firms outperform their peers? Labor markets played a big role.

A widespread lack of available jobs meant that the startups were able to land more productive and innovative employees, especially in their research and development groups, and then hold on to them. More important, the tight labor markets also meant that the founding inventors—the people named on the very first patent—were more likely to stick around rather than try for opportunities elsewhere.

For startups started during the 2007-09 recession, founding inventors were 25 percentage points less likely to leave their company within the first three years. On average, about 43% of founding inventors in the entire sample left their startup within the first three years.

“Our study really highlights the importance of labor retention for young innovative startups. Retaining founding inventors cannot only help them survive, but also thrive,” Bias says.

Is Elon Musk Actually Going to Buy Twitter? Can He Just Walk Away?

Here are Musk’s options should he try to abandon the $61 billion deal.

Can either side walk away at any time?

Can Mr. Musk just pay Twitter the $1 billion breakup fee to get out of the deal?

What will Twitter do?

What is going to happen?

A study suggests that when jobs are hard to come by, the best workers are more available—and stay longer