Learn the letter Elon Musk despatched to Twitter with extra causes to terminate his $44 billion takeover deal

Pricey Ms. Gadde:

We write on behalf of X Holdings I, Inc. and X Holdings II, Inc. (the “Musk Events”) to offer a further discover of termination of the Settlement and Plan of Merger by and among the many Musk Events and Twitter, Inc. (“Twitter”) dated as of April 25, 2022 (the “Merger Settlement”). On July 8, 2022, the Musk Events terminated the Merger Settlement (the “July 8 Termination Discover”) on sure bases. Since that point, Twitter has challenged the validity of the July 8 Termination Discover and contends that the Merger Settlement stays in pressure, a place that the Musk Events are contesting. Allegations relating to sure details, identified to Twitter previous to and as of July 8, 2022, however undisclosed to the Musk Events previous to and at the moment, have since come to gentle that present extra and distinct bases to terminate the Merger Settlement. Though the Musk Events consider this termination discover isn’t legally essential to terminate the Merger Settlement as a result of they’ve already validly terminated it pursuant to the July 8 Termination Discover, the Musk Events are delivering this extra termination discover within the occasion that the July 8 Termination Discover is set to be invalid for any cause.

On August 23, 2022, the Washington Publish printed a whistleblower report back to Congress, the SEC, FTC, and DOJ filed by Peiter “Mudge” Zatko, Twitter’s former chief safety officer, on July 6, 2022 (the “Zatko Criticism”). The Zatko Criticism alleges far-reaching misconduct at Twitter—all of which was disclosed to Twitter’s administrators and senior executives, together with Parag Agrawal—that’s more likely to have extreme penalties for Twitter’s enterprise. For instance, Mr. Zatko alleges that:

• Twitter is in materials noncompliance with each its obligations underneath a 2011 FTC consent decree and its normal obligations underneath knowledge privateness, unfair commerce follow, and client safety legal guidelines and rules;

• Twitter is uniquely weak to systemic disruption ensuing from knowledge heart failures or malicious actors, a truth which Twitter management (together with its CEO) have ignored and sought to obfuscate;

• Twitter’s platform is in-built important half on the misappropriation and infringement of third get together mental property; and

• Twitter acquiesced to calls for made by the Indian authorities that its brokers be employed by Twitter and given entry to Twitter person data.

These allegations, if true, show that Twitter has breached the next provisions of the Merger Settlement, thereby giving the Musk Events the correct to terminate the Merger Settlement pursuant to its phrases as extra absolutely described beneath.

Part 4.5 Permits; Compliance With Legal guidelines. Within the Merger Settlement, Twitter represented, inter alia, that it was in compliance with all relevant legal guidelines. That illustration was apparently false when made on the date of the Merger Settlement and as of the date of the July 8 Termination Discover, and continues to be inaccurate. The Zatko Criticism alleges that Twitter has been violating a consent decree it entered into with the FTC in 2011. That consent decree required Twitter to determine and keep “a complete data safety plan” to make sure that its customers’ private knowledge was sufficiently shielded from disclosure. Mr. Zatko’s statements purport to disclose that Twitter has not been, and maybe by no means will likely be, in compliance with that decree. Twitter has already paid a tremendous of $150 million for violating a facet of that decree, and Facebook just lately paid $5 billion for related person knowledge violations. As well as, the Zatko Criticism alleges that Twitter has repeatedly violated the 2011 FTC consent decree (by going nicely past the violations settled in Twitter’s latest $150 million settlement), along with breaching a slew of different knowledge privateness, unfair commerce follow, cybersecurity, and client safety legal guidelines and rules that Twitter should adjust to, together with however not restricted to Twitter granting brokers of the Indian authorities entry to confidential person knowledge. These violations would have materials, if not existential, penalties to Twitter’s enterprise, constituting a Firm Materials Adversarial Impact as outlined within the Merger Settlement.

Part 4.6 Firm SEC Paperwork; Monetary Statements. Within the Merger Settlement, Twitter additionally represented, inter alia, that no paperwork it filed with the SEC since January 1, 2022, “contained any unfaithful assertion of a fabric truth or omitted to state any materials truth required to be acknowledged therein or essential to make the statements therein . . . not deceptive.” That illustration was apparently false when made on the date of the Merger Settlement and as of the date of the July 8 Termination Discover, and continues to be inaccurate. The Zatko Criticism alleges that Twitter’s SEC filings contained unfaithful statements of fabric truth or omitted to state materials details essential to make the statements therein not deceptive. For instance, Twitter’s 2021 10-Okay, dated February 16, 2022, states that “issues associated to . . . privateness, knowledge safety, security, [and] cybersecurity” “may probably negatively have an effect on mDAU progress and engagement,” whereas omitting the numerous privateness, knowledge safety, security, [and] cybersecurity dangers Mr. Zatko alerted the board of previous to the submitting of the 10-Okay, together with these details outlined above. Equally, Twitter’s illustration in its 2021 10-Okay that Twitter “attempt[s] to adjust to relevant legal guidelines and rules referring to privateness, knowledge safety, and cybersecurity” was materially deceptive if, in actuality, Twitter was ignoring Mr. Zatko’s warnings that the corporate was in violation of privateness, knowledge safety, and cybersecurity legal guidelines and rules.

Twitter’s materials misrepresentations and/or omissions within the Merger Settlement and Twitter’s 2021 10-Okay relating to these critical allegations additionally represent fraud within the inducement, giving the Musk Events the correct to recission.

Part 4.8 Disclosure Controls and Procedures. Within the Merger Settlement, Twitter additionally represented, inter alia, that it had disclosed “any fraud to the Information of the Firm, whether or not or not materials, that entails administration or different staff who’ve a big function within the Firm’s inner management over monetary reporting.” That illustration was apparently false when made on the date of the Merger Settlement and as of the date of the July 8 Termination Discover, and continues to be inaccurate. One part of the Zatko Criticism is that Twitter’s CEO, Parag Agrawal, knowingly introduced false and deceptive experiences to Twitter’s Board of Administrators with a view to cowl up flagrant vulnerabilities in Twitter’s safety and knowledge safety infrastructure. Twitter was made conscious of exactly that in an inner report ready by Mr. Zatko in February 2022. Twitter was obligated to reveal Mr. Agrawal’s conduct “whether or not or not materials” (though it was clearly materials), and failed to take action.

Part 4.11. Litigation. Within the Merger Settlement, Twitter represented, inter alia, that there have been no threatened or pending lawsuits or Authorities investigations that might represent a Firm Materials Adversarial Impact (throughout the which means of the Merger Settlement). It’s probably the case—given the intensive data withheld from the Musk Events detailed within the Zatko Criticism—that the representations set forth in Part 4.11 will likely be false as of the date of any potential closing of the transactions contemplated by the Merger Settlement, leading to a failure of the closing situation set forth in Part 7.2(b). Certainly, Twitter is now dealing with a number of Congressional inquiries: the Senate Judiciary Committee has introduced a full Committee listening to, the Home Vitality and Commerce Committee introduced that it’s “assessing subsequent steps,” and a number of US Senators have publicly known as for the FTC and DOJ to open investigations. See

https://www.washingtonpost.com/expertise/2022/08/24/twitter-whistleblower-senate-hearing; https://www.washingtonpost.com/expertise/2022/08/23/twitter-whistleblower-congress-investigation. The info privateness authorities of Eire and France are additionally investigating the claims within the Zatko Criticism. https://techcrunch.com/2022/08/24/twitter-whistleblower-security-eu/. It’s probably that the SEC, FTC, and DOJ, in addition to extra international regulators will not be far behind. Twitter may also now face a myriad of civil lawsuits, asserting claims pursuant to numerous privateness and cybersecurity legal guidelines, state client safety legal guidelines, false promoting legal guidelines, mental property theft and misappropriation and customary legislation claims, equivalent to unjust enrichment, fraud, and breach of contract. Many of those civil claims are more likely to be asserted as class motion claims that might threaten the viability of the platform. This still-rolling litigation avalanche brings with it billions of {dollars} of potential damages, fines, and penalties, to say nothing of the numerous reputational and operational hurt that is available in parallel, clearly constituting a Firm Materials Adversarial Impact underneath the phrases of the Merger Settlement.

Part 4.14. Mental Property. Within the Merger Settlement, Twitter represented, inter alia, that it was not infringing the mental property of others (the “Non-Infringement Rep”) and that it was in compliance with all relevant knowledge privateness and safety necessities (the “Information Privateness Rep”). Each representations had been apparently false when made on the date of the Merger Settlement and as of the date of the July 8 Termination Discover, and each proceed to be inaccurate. As revealed by the Zatko Criticism, Twitter apparently by no means acquired the rights to Twitter’s core machine studying fashions, which the Musk Events perceive to be basic to the Twitter platform itself. That infringement threatens not simply important financial damages, however the potential for injunctive reduction that might threaten Twitter’s ongoing enterprise as at present operated. Both alone can be a Firm Materials Adversarial Impact underneath the phrases of the Merger Settlement. Equally, the Zatko Criticism lays out widespread, egregious violations of the info privateness protections that an organization like Twitter is anticipated—and, certainly, legally required—to have in place. This is able to be a gross violation of belief by the Twitter platform that may have authorized and industrial penalties, and which additionally provides rise to a Firm Materials Adversarial Impact underneath the phrases of the Merger Settlement.

Part 7.2. Circumstances to the Obligations of Guardian and Acquisition Sub. Lastly, within the Merger Settlement, Twitter represented, inter alia, that it had not and wouldn’t (previous to closing) expertise a Firm Materials Adversarial Impact (throughout the which means of the Merger Settlement). The breaches and penalties described above, individually and collectively, counsel that Twitter has the truth is already skilled a Firm Materials Adversarial Impact underneath the phrases of the Merger Settlement, the complete extent of which stays to be seen.

The details supporting these breaches, which had been withheld from the Musk Events however identified to Twitter as of the date of the Merger Settlement and on the time of the July 8 Termination Discover, offered extra bases to terminate the Merger Settlement as of that date and supply extra bases to terminate the Merger Settlement at the moment if the Musk Events’ termination of the Merger Settlement pursuant to the July 8 Termination Discover is set to be invalid for any cause. This additionally gives a foundation for recission. As a result of these details had been identified to Twitter and withheld from the Musk Events, and since Twitter has since taken the place that the Merger Settlement stays in impact, the Musk Events hereby present this extra discover of termination of the Merger Settlement efficient as of July 8, 2022 pursuant to Part 8.1(d)(i) thereof on the idea of the details set forth above. For the avoidance of doubt, these bases are along with, and never in lieu of, the bases for termination recognized within the July 8 Termination Discover.

Sincerely,

Mike Ringler

Skadden, Arps, Slate, Meagher & Flom LLP