If Mr. Musk loses this suit, he doesn't get a choice between paying the $1 billion termination fee or acquiring Twitter. (Though, of course, Twitter could at some point - e.g., if it believed it didn't have much chance to win the suit - decide to settle for a payment of $1 billion or some other amount.) This is a suit to compel specific performance.
The $1 billion termination fee only applies under certain circumstances. It isn't a get-out-of-the-deal-for-$1-billion provision. And, when it comes to Mr. Musk paying, the $1 billion termination fee only applies if Twitter decides to terminate the deal (because, e.g., Mr. Musk failed to fulfill certain conditions). There are no circumstances where it applies (i.e. where Mr. Musk has to pay it) if Mr. Musk decides to terminate the deal.
If Mr. Musk is determined to have (actionably) breached the contact, the remedy would be compelling him to fulfill his obligation under the merger agreement or, perhaps, ordering him to pay some as-yet-undetermined amount in damages.
You are right to a degree, but it appears you’re ignoring practicality, or just simply ignoring details in order to support your strength on twitter.
One of the circumstances that the $1b fine would apply to is if he is unable to secure debt financing.
As this has played out - there are plenty of reasons for investors to pull out as you can imagine.
This lawsuit itself can simply be seen as an indirect function to prevent the financing Musk needs for twitter.
I repeat - Twitter is not in a good spot.
I do need adjust the scenarios -
Twitters winning scenarios all involve Musk acquiring twitter via 2 methods.
1. Through legal action (unlikely).
2. Through renegotiating.
We all know the data that’s will come out if this goes to trial - and we all know it won’t be good for Twitter.
Their primary argument will be the contract - and they will differ from the data as much as possible.
Twitter has already made passive tweets against the bot claims - tweets that lack confidence. If they were truly confident in their data, they would make it crystal clear in public - as it would only help their value and argument.