1/ My take on the stay in $TWTR v. Musk. Key language in the order: "Defendants...have agreed to close on the Agreement and Plan of Merger dated April 25, 2022 and have moved to stay this action in light of their agreement."
2/ This is, in effect, a new agreement: an agreement by Defendants, despite their termination & their counterclaims, to close on the original agreement. This is, IMO, a brilliant move by the Chancellor.
3/ What about Plaintiff? Well, Plaintiff's problem is that Defendants' agreement will not ensure that the transaction closes fast enough." I can't find the proposed order to Defendants' motion, but the motion itself sets no deadline for lifting the stay.
4/ The Chancellor took care of that: They have until October 28 to get the deal done. 11 days. That's it.
5/ And not a word about any "Debt Financing" contingency (Defendants' motion had lots about that.)
6/ I would encourage anyone unfamiliar with the Delaware "prevention doctrine" to read Chancellor McCormick's opinion here: casetext.com/case/snow-phip…
7/ In the KCake case, the defendants argued they were excused from completing the acquistion because their financing fell through. Ummm, nope (and, please, read the whole thing):
8/ I believe Musk runs an enormous (ENORMOUS) risk if the $13B in financing falls through. There is ample evidence to conclude that his own shenanigans & delays caused it. Chancellor McCormick won't hesitate to so conclude.
9/ So, why allow any delay at all? First, if the case goes to trial, it makes any appeal that much more bullet-proof. Musk can't argue he would have gotten there but for being denied the stay...