Tesla and SpaceX founder and CEO Elon Musk stunned the big tech world Thursday when it was revealed that he had made an offer to buy the company with an eye toward transforming it into a much more user-friendly platform that doesn’t react to certain forms of speech with bans and censorship.
Judging by the reactions of some current stakeholders in the company, his offer is not being well-received. But the thing is, even if the company rejects his offer, he could still obtain it if he wants it badly enough.
“Musk could still target stockholders by either seeking proxy votes or purchasing their shares in a so-called ‘hostile takeover,’ thus taking over the company,” The Daily Wire reported, adding: “A hostile takeover occurs when an outside entity tries to take over a company without the management’s consent.”
On Thursday, Musk tendered an offer of $54.20 per share, while the current market price of Twitter is $45.85 per share. At one point last year, Twitter stock had risen to $70 per share.
But if Twitter’s board rejects his officer, Musk could make it directly to shareholders, and thus get around the board’s objections.
“Investopedia notes that shareholders often accept the tender offer when it is a ‘sufficient premium to market value or if they are unhappy with current management,” the Daily Mail noted.
“Another avenue Musk could take: encouraging stockholders to urge other stockholders to let them use their proxy votes, then, having gathered enough proxies, having them vote to accept Musk’s offer,” The Daily Wire noted.
Twitter could then respond by issuing what is known as blank check preferred stock in order to defend against the hostile takeover.
Blank check preferred stock is a method companies use to simplify the process of creating new classes of preferred stock and to raise additional funds from sophisticated investors without obtaining separate shareholder approval. In effect, a company’s shareholders pre-approve the new class to be issued at some point in the future, and then the firm’s board of directors (BoD) has broad discretion in when and how to issue them. This kind of stock can also be created by a public company as a takeover defense in the event of a hostile bid for the company.
“To do issue blank check preferred stock, a company must amend its articles of incorporation to create a new class of unissued shares of preferred stock whose terms and conditions may be expressly determined by the company’s board of directors,” Investopedia explains further.
Forbes notes: “ “Twitter doesn’t have the dual-share classes that many public tech companies (Meta, Alphabet, Snap) do. Those systems leave voting rights—control—with a company’s founders, protecting them against a Musk. Without this, Twitter could adopt a so-called poison pill plan, a costly move where it sells stock at a discount to dilute an aggressive shareholder’s stake.”
“The next step will be Twitter’s Board officially reviewing the Musk filing/letter and then it’s get-out-the-popcorn time as we expect many twists and turns in the weeks ahead as Twitter and Musk walk down this marriage path,” analyst Dan Ives told The Washington Post.
In a letter to Twitter’s board chairman Bret Taylor, Musk said:
I am offering to buy 100% of Twitter for $54.20 per share in cash, a 54% premium over the day before I began investing in Twitter and a 38% premium over the day before my investment was publicly announced. My offer is my best and final offer and if it is not accepted, I would need to reconsider my position as a shareholder. Twitter has extraordinary potential. I will unlock it.