SpaceX founder Elon Musk reacted to a post-launch press conference after SpaceX’s Falcon 9 rocket carrying the Crew Dragon spacecraft lifted off during an uncrewed test flight to the International Space Station from the Kennedy Space Center in Cape Canaveral, Florida, USA. March 2, 2019
Mike Blake | Reuters
After billionaire Elon Musk said he was ending the Twitter acquisition, the social network countered by citing a contract clause that is often required when one party tries to back out of a deal.
Item known as Specific Performanceis often used in real estate matters so that buyers and sellers do not cancel transactions without a good reason. But it’s also included in corporate merger agreements as a way to get the buyer or seller to close the deal without major breaches like fraud.
In a Twitter notification of its plans to complete the deal on Friday, Musk’s lawyers gave three reasons why Twitter terminated the contract. First, they claim that Twitter has fraudulently reported the number of spam accounts., which, according to the company, make up about 5% of users. Musk would have to prove that the number of so-called bots is much higher and demonstrate a “significant negative impact” on Twitter’s business in order to have grounds for terminating the deal.
Second, Musk’s lawyers say Twitter “failed to provide much of the data and information” requested by Musk, even though the contract says Twitter must provide reasonable access to its “property, books and records.”
Finally, Musk’s lawyers allege that Twitter failed to honor a contract clause that required the company to obtain consent before deviating from its normal operations. Musk cites Twitter’s decision to lay off two “high-profile” employees, lay off a third of its talent team, and impose a general hiring moratorium as examples of decisions made without his advice.
The Delaware Court of Chancery, a non-jury court that primarily hears corporate cases based on shareholder lawsuits and other domestic cases, has ruled in a number of cases in which a company invoked a specific performance clause to force a sale. None was as big as Musk’s $44 billion Twitter deal, and the details behind it also vary.
Still, past cases can provide context for how the Musk-Twitter dispute could end.
In this case, 2001Tyson agreed to acquire IBP, a meat distributor, for $30 a share, or $3.2 billion, after winning the bidding war. But when both Tyson and IBP’s business suffered after the agreement, Tyson tried to pull out of the deal, claiming that IBP had hidden financial problems.
Judge Leo Strain found no evidence that IBP materially breached the contract and said Tyson was simply “regretting the buyer”. According to him, this does not justify canceling the deal.
The exterior of the Tyson Fresh Meats factory was seen on May 1, 2020 in Wallula, Washington. More than 150 workers at the plant have tested positive for COVID-19, according to local health authorities.
David Ryder | Getty Images
Strain ruled that Tyson should have bought IBP given a specific clause in the contract.
“Concrete results are clearly the preferred remedy for Tyson’s wrongdoing, as it is the only method by which the damage that threatens IBP and its shareholders can be adequately repaired,” Strine wrote.
Over 20 years later, Tyson still owns IBP.
However, the Tyson deal differs in several key ways. Tyson hoped the judge would let him walk out of the deal, in part because of the significant deterioration in IBP’s business since the agreement was signed. Musk argues that false and vague information about spam accounts should allow him to walk.
Also, unlike Tyson’s deal with IBP, Musk’s acquisition of Twitter involves billions of dollars of external funding. It’s not clear how the decision in Twitter’s favor will affect the deal’s potential funding and whether it will impact the closure.
Strine now works with Wachtell, Lipton, Rosen & Katz, firm Twitter hired justify your position.
In this case, 2020A South Korean financial firm has agreed to buy 15 US hotels from AB Stable, a subsidiary of China’s Anbang Insurance Group, for $5.8 billion. The deal was signed in September 2019 and is due to close in April 2020.
The buyer argued that the shutdowns due to Covid-19 caused a material adverse effect on the transaction. The seller sued for a specific performance.
Judge J. Travis Laster found that the hotel closures and drastic capacity cuts disrupted the “business as usual” clause and ruled that the buyer could walk out of the deal.
Delaware Supreme Court confirmed the decision in 2021.
In another Covid-19 case, LVMH initially agreed to buy jewelry maker Tiffany. for $16.2 billion in November 2019. LVMH then attempted to pull out of the deal in September 2020 during the pandemic before it was due to close in November. Tiffany sued for a specific performance.
In this case, the judge never ruled because both parties agreed to lower the price to account for the drop in demand during the global economic downturn due to Covid-19. LVMH agreed pay $15.8 billion for Tiffany in October 2020. The deal closed in January. 2021
Tiffany & Co. facade of a store in Midtown, New York.
John Lamparsky / SOPA Images | Light rocket | Getty Images
In that case 2007, Shoe retailer Finish Line initially agreed to buy Genesco for $1.5 billion in June 2007 with a December closing date. 31, 2007. Finish Line attempted to terminate the deal in September 2007, alleging that Genesco “committed securities fraud and fraudulently induced Finish Line to enter into the deal without providing material information” regarding projected earnings.
As with Tyson, the Delaware Court of Chancery ruled that Genesco had fulfilled its obligations and that Finish Line was simply remorseful that the buyer had paid too much. Markets began to fall in mid-2007 as the housing and financial crisis hit.
But instead of completing the deal, both parties agreed to terminate the deal, with Finish Line indemnifying Genesco. In March 2008, with the credit market crashing, Finish Line and its main lender UBS agreed to pay Genesco $175 million and Genesco received a 12% stake in Finish Line.
To date, Genesco remains an independent public company. JD Sports Fashion has agreed to buy Finish Line for $558 million in 2018.
WATCH: Elon Musk pulls out of Twitter deal, possibly heading to court