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.
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.
Oh I 100% agree with you on the chances that this means anything. There would have to be some evidence that they just made up a number, or invented a methodology that they knew would drastically undercount, or some-such. Just running a different methodology that returns a bigger number is not sufficient to break these clauses.
> 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.