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> and put a clause in the contract about it and they fell into a trap. What a genius ... oh shit, there isnt a secret bot trap in the contract. https://www.se

> and put a clause in the contract about it and they fell into a trap. What a genius ... oh shit, there isnt a secret bot trap in the contract. https://www.sec.gov/Archives/edgar/data/0001418091/000119312522120461/d310843dex21.htm https://www.sec.gov/Archives/edgar/data/0001418091/000119312...

rdtsc 4y ago
Let me guess, just searched for the word "bot" and didn't find it. Well, I guess they are off the hook then...
- adt2bt 4y ago
  Extraordinary claims require extraordinary evidence. GP made a decent effort to try to find this clause, couldn't, and you're effectively claiming they're full of it because it's gotta be in there. A more hacker-newsy way to approach this would be to either find the clause yourself (and earn your upvotes the hard way), or perhaps admit your baseless speculation was, indeed, baseless.
  - jdmichal 4y ago
    It's rather silly to assume the clause would be written that narrowly. I replied above with what would likely be a relevant clause, which covers any and all information supplied by Twitter.
  - rdtsc 4y ago
    > Extraordinary claims require extraordinary evidence. Of course. But what's so extraordinary that a contract would have a clause about misrepresentation or providing false information in a purchase deal like this. > A more hacker-newsy way to approach this would be to either find the clause yourself (and earn your upvotes the hard way). Thanks, been here for 10+ years I am ok not harvesting upvotes. Maybe some other time. But ok, it's Friday, let's do a bit more search than just Ctrl+F "bot". Twitter's 10-Q https://www.sec.gov/ix?doc=/Archives/edgar/data/1418091/000141809122000075/twtr-20220331.htm https://www.sec.gov/ix?doc=/Archives/edgar/data/1418091/0001... > We have performed an internal review of a sample of accounts and estimate that the average of false or spam accounts during the first quarter of 2022 represented fewer than 5% of our mDAU during the quarter (From page 5) EX-2.1 AGREEMENT AND PLAN OF MERGER https://www.sec.gov/Archives/edgar/data/0001418091/000119312522120461/d310843dex21.htm https://www.sec.gov/Archives/edgar/data/0001418091/000119312... > [...] none of the Company SEC Documents at the time it was filed [...] contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, or are to be made, not misleading. (Section 4.6.a) > The consolidated financial statements (including all related notes) of the Company included in the Company SEC Documents fairly present in all material respects the consolidated financial position of the Company [...] (Section 4.6.b) > None of the information supplied or to be supplied by or on behalf of the Company or any of its Subsidiaries expressly for inclusion or incorporation by reference in the proxy statement relating to the matters to be submitted to the Company’s stockholders [...] [shall] contain any untrue statement of material fact or omit to state any material fact required to be stated therein ... (Section 4.7) > GP made a decent effort to try to find this clause If Ctrl+F "bot" counts for a "decent effort", I don't know, I guess...
    - redredrobot 4y ago
      You can't just quote a part of a contract and specifically cut out the legal caveats that exists to avoid the risk of being considered material misrepresentation. The correct quote is: > We have performed an internal review of a sample of accounts and estimate that the average of false or spam accounts during the first quarter of 2022 represented fewer than 5% of our mDAU during the quarter. The false or spam accounts for a period represents the average of false or spam accounts in the samples during each monthly analysis period during the quarter. > In making this determination, we applied significant judgment, so our estimation of false or spam accounts may not accurately represent the actual number of such accounts, and the actual number of false or spam accounts could be higher than we have estimated
      - rdtsc 4y ago
        It may hinge on them saying they "applied significant judgment" vs due diligence showing they knew they had much higher numbers. There is a difference to "we did our best to calculate it but we could have made a mistake" vs "we calculated, got a high number but purposefully put in a low number".
        redredrobot 4y ago
        Elon didn't do any non-public due diligence of Twitter
        rdtsc 4y ago
        Exactly. I think he may be reconsidering that, though it's probably too late. The whole thing is very baffling.
        redredrobot 4y ago
        I actually think it's probably pretty simple underneath the facade - Musk offered to buy Twitter for a lot of money. The market tanked and Musk doesn't want to pay that price any more. He thinks he can strong-arm Twitter and either not go through with the purchase or force them to accept a lower price. The law does not support this, but Musk has a history of being unbothered by the law and there are examples (not Musk) where this tactic has worked to reduce the purchase price by hundreds of millions of dollars. Everything else is just window dressing.
jdmichal 4y ago
Of course they didn't write it that specifically. That would be extraordinarily silly. One writes the clause to be as general as possible, while also covering the primary concern. Witness, page 25: > Section 4.7 Information Supplied. None of the information supplied or to be supplied by or on behalf of the Company or any of its Subsidiaries expressly for inclusion or incorporation by reference in the proxy statement relating to the matters to be submitted to the Company’s stockholders at the Company Stockholders’ Meeting (such proxy statement and any amendments or supplements thereto, the “Proxy Statement”) shall, at the time the Proxy Statement is first mailed to the Company’s stockholders and at the time of the Company Stockholders’ Meeting to be held in connection with the Merger, contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading at such applicable time, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied, or required to be supplied, by Parent or its Representatives in writing expressly for inclusion therein. The Proxy Statement will comply as to form in all material respects with the provisions of the Securities Act and the Exchange Act, and the rules and regulations promulgated thereunder.
- tedunangst 4y ago
  What percentage spam accounts would qualify as untrue statement of material fact?
  - jdmichal 4y ago
    Any percentage that was not calculated using a methodology? As HillRat said: * As long as they used _a_ methodology, * and that methodology spat out 5%, * and there's no material information to indicate that anyone thought the methodology was inaccurate or otherwise wrong, Then there's probably nothing actionable there.
- HillRat 4y ago
  The SEC filing clause (4.6(a)) is probably more germane than the proxy materials when it comes to bot calculations, and page 5 of the last Twitter 10-K covers their methodology. One can argue with their calculation method, but they're clear about how they're doing it and, as long as nothing comes to light documenting that they internally believe their bot rates to be higher than what their filing shows, they're in material compliance with the contract. There's no due-dil out for Musk in this, only a material misrepresentation penalty that Twitter is highly, highly unlikely to fall afoul of.

rdtsc 4y ago

Let me guess, just searched for the word "bot" and didn't find it. Well, I guess they are off the hook then...

adt2bt 4y ago
Extraordinary claims require extraordinary evidence. GP made a decent effort to try to find this clause, couldn't, and you're effectively claiming they're full of it because it's gotta be in there. A more hacker-newsy way to approach this would be to either find the clause yourself (and earn your upvotes the hard way), or perhaps admit your baseless speculation was, indeed, baseless.
- jdmichal 4y ago
  It's rather silly to assume the clause would be written that narrowly. I replied above with what would likely be a relevant clause, which covers any and all information supplied by Twitter.
- rdtsc 4y ago
  > Extraordinary claims require extraordinary evidence. Of course. But what's so extraordinary that a contract would have a clause about misrepresentation or providing false information in a purchase deal like this. > A more hacker-newsy way to approach this would be to either find the clause yourself (and earn your upvotes the hard way). Thanks, been here for 10+ years I am ok not harvesting upvotes. Maybe some other time. But ok, it's Friday, let's do a bit more search than just Ctrl+F "bot". Twitter's 10-Q https://www.sec.gov/ix?doc=/Archives/edgar/data/1418091/000141809122000075/twtr-20220331.htm https://www.sec.gov/ix?doc=/Archives/edgar/data/1418091/0001... > We have performed an internal review of a sample of accounts and estimate that the average of false or spam accounts during the first quarter of 2022 represented fewer than 5% of our mDAU during the quarter (From page 5) EX-2.1 AGREEMENT AND PLAN OF MERGER https://www.sec.gov/Archives/edgar/data/0001418091/000119312522120461/d310843dex21.htm https://www.sec.gov/Archives/edgar/data/0001418091/000119312... > [...] none of the Company SEC Documents at the time it was filed [...] contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, or are to be made, not misleading. (Section 4.6.a) > The consolidated financial statements (including all related notes) of the Company included in the Company SEC Documents fairly present in all material respects the consolidated financial position of the Company [...] (Section 4.6.b) > None of the information supplied or to be supplied by or on behalf of the Company or any of its Subsidiaries expressly for inclusion or incorporation by reference in the proxy statement relating to the matters to be submitted to the Company’s stockholders [...] [shall] contain any untrue statement of material fact or omit to state any material fact required to be stated therein ... (Section 4.7) > GP made a decent effort to try to find this clause If Ctrl+F "bot" counts for a "decent effort", I don't know, I guess...
  - redredrobot 4y ago
    You can't just quote a part of a contract and specifically cut out the legal caveats that exists to avoid the risk of being considered material misrepresentation. The correct quote is: > We have performed an internal review of a sample of accounts and estimate that the average of false or spam accounts during the first quarter of 2022 represented fewer than 5% of our mDAU during the quarter. The false or spam accounts for a period represents the average of false or spam accounts in the samples during each monthly analysis period during the quarter. > In making this determination, we applied significant judgment, so our estimation of false or spam accounts may not accurately represent the actual number of such accounts, and the actual number of false or spam accounts could be higher than we have estimated
    - rdtsc 4y ago
      It may hinge on them saying they "applied significant judgment" vs due diligence showing they knew they had much higher numbers. There is a difference to "we did our best to calculate it but we could have made a mistake" vs "we calculated, got a high number but purposefully put in a low number".
      - redredrobot 4y ago
        Elon didn't do any non-public due diligence of Twitter
        rdtsc 4y ago
        Exactly. I think he may be reconsidering that, though it's probably too late. The whole thing is very baffling.
        redredrobot 4y ago
        I actually think it's probably pretty simple underneath the facade - Musk offered to buy Twitter for a lot of money. The market tanked and Musk doesn't want to pay that price any more. He thinks he can strong-arm Twitter and either not go through with the purchase or force them to accept a lower price. The law does not support this, but Musk has a history of being unbothered by the law and there are examples (not Musk) where this tactic has worked to reduce the purchase price by hundreds of millions of dollars. Everything else is just window dressing.

jdmichal 4y ago

Of course they didn't write it that specifically. That would be extraordinarily silly. One writes the clause to be as general as possible, while also covering the primary concern. Witness, page 25: > Section 4.7 Information Supplied. None of the information supplied or to be supplied by or on behalf of the Company or any of its Subsidiaries expressly for inclusion or incorporation by reference in the proxy statement relating to the matters to be submitted to the Company’s stockholders at the Company Stockholders’ Meeting (such proxy statement and any amendments or supplements thereto, the “Proxy Statement”) shall, at the time the Proxy Statement is first mailed to the Company’s stockholders and at the time of the Company Stockholders’ Meeting to be held in connection with the Merger, contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading at such applicable time, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied, or required to be supplied, by Parent or its Representatives in writing expressly for inclusion therein. The Proxy Statement will comply as to form in all material respects with the provisions of the Securities Act and the Exchange Act, and the rules and regulations promulgated thereunder.

tedunangst 4y ago
What percentage spam accounts would qualify as untrue statement of material fact?
- jdmichal 4y ago
  Any percentage that was not calculated using a methodology? As HillRat said: * As long as they used _a_ methodology, * and that methodology spat out 5%, * and there's no material information to indicate that anyone thought the methodology was inaccurate or otherwise wrong, Then there's probably nothing actionable there.
HillRat 4y ago
The SEC filing clause (4.6(a)) is probably more germane than the proxy materials when it comes to bot calculations, and page 5 of the last Twitter 10-K covers their methodology. One can argue with their calculation method, but they're clear about how they're doing it and, as long as nothing comes to light documenting that they internally believe their bot rates to be higher than what their filing shows, they're in material compliance with the contract. There's no due-dil out for Musk in this, only a material misrepresentation penalty that Twitter is highly, highly unlikely to fall afoul of.