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That would be looked on by Delaware judges about as kindly as using a cigarette lighter to burn the only copy of a contract in front of them. He had the financing contractually agreed, that clause was in case something happened like Tesla or one of the banks providing a loan going bankrupt (actually writing that makes me think I remember that the clause was only applicable to the loans part of the financing and not even the other investors - but I'm not sure I'm right, and too lazy to go find and re-read the purchase agreement they signed).

Some people did speculate that the reason Musk started publicly disparaging Twitter was in the hope that some of his financing would try to pull their agreements thus triggering this clause, but the expert opinions I saw were that the court wouldn't accept that, especially after Twitter filed suit against him, and sure enough that strategy (if it was a strategy) didn't pay off - otherwise he wouldn't be where he is today. (Matt Levine covered this particular theory well in his Bloomberg newsletter.)





I read the highlighted bit several times. Still can't make heads of tales of it :)


Someone could probably translate it better than me [-1], but it roughly says that the investors Musk has lined up are legally obligated to provide the funding they agreed to, and explicitly states that there are no justifications for getting out of the deal except for "paragraph 6 of Exhibit E".

Exhibit E is the part of the deal Musk signed to buy Twitter that's titled "Equity commitment letter dated April 20, 2022", and #6 is the final point of the exhibit which is a generic boilerplate clause with a sub header of "Governing Law; Consent to Jurisdiction". This point basically means "unless any laws make this contract illegal, because our contract isn't allowed to supersede any laws".

Exhibit E #6 is on page 113 of the contract [0] and I'll paste the full text below but it's a boring read! [1].

Also worth noting that even within Exhibit E, paragraph 2 says that the investor's obligations to fund this deal end only in two circumstances - either when they pay their obligation as part of the deal closing, or when the deal falls apart because of something in the contract terms (ie out of their hands). Full text also below [2]

[-1] edit to add that I'm not a lawyer (nor is this comment advice), just a bit of a nerd who's had the pleasure (:|) of negotiating and sometimes writing a few more contracts than I wish I had over the past decade, including with a couple of big publicly traded US companies. (Nothing close to as big as this deal of course, but these bits of the contract are pretty typical.)

[0] https://d18rn0p25nwr6d.cloudfront.net/CIK-0001418091/7d8ab22...

[1] "Governing Law; Consent to Jurisdiction. This letter agreement, and all actions, causes of action, claims, cross-claims, third-party claims or proceedings of any kind (whether at law, in equity, in contract, in tort or otherwise) that may be based upon, arise out of or relate to this letter agreement, or the negotiation, execution or performance hereof (including any action, cause of action, claim, cross-claim, third-party claim or proceeding of any kind based upon, arising out of or related to any representation or warranty made in or in connection herewith) shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of legal requirements that might otherwise govern under applicable principles of conflicts of laws. Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of the Delaware Court of Chancery (or, only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court of the United States of America sitting in the State of Delaware), and any appellate court from any thereof, in any action, cause of action, claim, cross-claim or third-party claim or proceeding of any kind arising out of or relating to this letter agreement, or the negotiation, execution or performance hereof (including any action, cause of action, claim, cross-claim or third- party claim or proceeding of any kind based upon, arising out of or related to any representation or warranty made in or in connection herewith), or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action, cause of action, claim, cross-claim or third-party claim or proceeding of any kind shall be heard and determined in such Delaware Court of Chancery (or, only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court of the United States of America sitting in the State of Delaware), (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action, cause of action, claim, cross-claim or third-party claim or proceeding of any kind arising out of or relating to this letter agreement, or the negotiation, execution or performance hereof (including any action, cause of action, claim, cross-claim or third-party claim or proceeding of any kind based upon, arising out of or related to any representation or warranty made in or in connection herewith) in the Delaware Court of Chancery, any federal court of the United States of America sitting in the State of Delaware, or in any Delaware State court, (c) waives, to the fullest extent permitted by legal requirement, the defense of an inconvenient forum to the maintenance of such action, cause of action, claim, cross-claim or third-party claim or proceeding of any kind in any such court and (d) agrees that a final judgment in any such action, cause of action, claim, cross-claim or third-party claim or proceeding of any kind shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by legal requirement."

[2] "Termination. The Equity Investor’s obligation to fund the Aggregate Equity Commitment will terminate automatically and immediately upon the earliest to occur of (a) the consummation of the Closing (if the Closing occurs) (but only if such obligation to fund the Aggregate Equity Commitment shall have been discharged in connection therewith) and (b) a termination or expiration of the Offer in accordance with its terms. Upon the termination or expiration of this letter agreement, no party hereto shall have any further obligations or liabilities hereunder."




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