It has been all over the financial news that Elon Musk made an offer last week to buy out Twitter for $54.20 per share, which is well above its recent stock price. And also, that the board quickly stiff-armed Musk by adopting a “poison pill” provision. What are poison pills, are they a good thing, and how does this particular one work?

Major decisions for a corporation are made by its board of directors. In theory, they are supposed to direct operations for the benefit of the company’s shareholders, who are considered the actual owners of the corporation. The members of the board are elected by the shareholders in annual meetings.

In practice, the board largely does what it wants, and has an outsized influence on who gets elected. The board sets the agenda of the annual meetings, and proposes successor directors. In theory, shareholders can propose resolutions and alternative board candidates at an annual meeting, but it usually takes a determined effort by some activist shareholder group to actually push through some measure that is not approved by the existing board. The outside board members are often executives of other companies, and so are naturally attuned to the interests of the managerial class.  Thus, the members of this Old Boys (and Girls) Club tend to vote each other generous pay:  board members are typically paid very handsomely for what is often a fairly undemanding, part-time job.

Big corporate mergers and takeovers became a thing in the 1980’s. Some outside investor would make an offer to buy up company shares for more than the current market price. Often,  management would resist this offer, since it might entail them losing their cushy jobs. The delicate matter for management in such cases was to convince shareholders that rejecting the buyout offer was in their best long-term interest.

As in so many matters, “where you stand depends on where you sit.” Management would argue that “short-termism” is bad for the company and for the nation as a whole; the “corporate raiders” would just fire people, break up the company, and sell off the pieces, and generally create misery. The outside investors would reply that their new management would “unlock value” better than the current management was doing, by making operations more efficient and competitive and innovative.

A variety of measures might be implemented by the board to make it less attractive or less feasible for a change in control. The terms of the board of directors might be staggered, so that it would be impossible for the existing board to be totally changed out in less than say 3 years, even if someone controlled 100% of the shares. A company I was associated with in the 1990’s implemented a policy that provided for generous severance packages for upper employees in the event of change of control. (Again, management looking out for themselves).

The term “poison pill” typically refers to some measure that  targets share prices, in a way to discourage a hostile takeover. The most common form is the “flip-in” approach: 

A flip-in poison pill strategy involves allowing the shareholders, except for the acquirer, to purchase additional shares at a discount. Though purchasing additional shares provides shareholders with instantaneous profits, the practice dilutes the value of the limited number of shares already purchased by the acquiring company. This right to purchase is given to the shareholders before the takeover is finalized and is often triggered when the acquirer amasses a certain threshold percentage of shares of the target company.

This is what the Twitter board has pulled on Musk. If he acquires more than 15% of Twitter shares without board approval, the company will allow any shareholder (except Musk) to purchase additional shares at a 50% discount. Yes, this dilution would tend to lower the value of the shares, but if a lot of shareholders bought into this offer, his share of control would shrink. If he tried to buy yet more shares to get back to more than 15% ownership, the company would issue yet more discounted shares to everyone except him.

Is the Twitter board acting in their own interests, or the interests of the shareholders? Investment adviser Larry Black noted, “Let me point out something obvious: If Elon Musk takes Twitter private, the Twitter board members don’t have jobs any more, which pays them $250K-$300K per year for what is a nice part-time job. That could explain a lot.”

Musk hinted at a “Plan B”, and tweeted provocatively, “Love Me Tender”. He might be considering trying to bypass the board altogether and make a “tender offer” to the shareholders at large to sell their shares to him, at some attractive price. Typical conditions for such an offer would be that he only has to make good on his purchase offer if some large plurality of the shareholders take him up on it. It turns out that in practice this approach can be messy and complicated and delayed, probably not something the fast-moving Musk might have patience with. Also, even if he captured 100% of the shares, he could not replace all the existing board members for something like three years, so they could remain sitting there,  making anti-Musk decisions all along.

Musk’s offer has now put Twitter “in play” as a takeover target. You know that lots of wealthy people and entities are consulting their investment bankers about becoming a white (or black) knight here. Anyway, it makes for great theater. Popcorn, anyone?