Elon Musk, CEO of Tesla and X, speaks on the Atreju political conference organized by Fratelli d’Italia (Brothers of Italy), in Rome, Dec. 15, 2023.
Antonio Masiello | Getty Images
Two weeks after a Delaware court ruled that Tesla should rescind Elon Musk’s $56 billion pay package, the corporate’s board stays mum on what the choice means for shareholders or what’s next for the mercurial CEO.
In her 200-page opinion on Jan. 30, Chancellor Kathaleen McCormick known as the pay plan the most important in public company historical past, and mentioned it was agreed upon by folks “who have been beholden to Musk.” Since then, Musk has lashed out on the court, posted “Never incorporate your organization within the state of Delaware” on his social media platform X, and mentioned Tesla would maintain a shareholder vote to maneuver its web site of incorporation to Texas.
Tesla hasn’t but issued an SEC submitting to inform shareholders of the ruling.
The resolution got here shortly after Musk indicated that he is pushing for much more management of Tesla, posting on X in mid-January that he wished roughly 25% voting management earlier than turning the corporate into a pacesetter in synthetic intelligence and robotics. Musk is already constructing an AI company called xAI outdoors of Tesla.
The next step within the compensation case is an “implementing order” that shall be hashed out between the court, Musk’s crew and the attorneys representing shareholder Richard Tornetta, a former heavy steel drummer who was the plaintiff within the 2018 lawsuit filed on behalf of all Tesla investors.
As shareholders await solutions, Tesla’s eight-person board, which incorporates Musk, his brother Kimbal, Chairwoman Robyn Denholm and former Tesla expertise chief JB Straubel, has stayed silent, avoiding any public feedback.
CNBC despatched requests for added data to Tesla investor relations, Musk and a few board members. They all went unanswered.
Greg Varallo, who was lead counsel for Tornetta and is head of the Delaware workplace of Bernstein Litowitz Berger & Grossmann, instructed CNBC that theoretically Musk and his authorized crew may nonetheless pursue a last-minute settlement. While Varallo mentioned he has no data of Musk’s plans, he mentioned he expects Musk to enchantment the choice to the Delaware state Supreme Court.
“I’d provide you with very excessive odds on that,” Varallo mentioned.
Kobi Kastiel, a regulation professor at Tel Aviv University, additionally predicts that Musk will enchantment the ruling. Kastiel wasn’t concerned within the litigation however he co-authored a 2023 paper within the Washington University Law Review titled “Superstar CEOs and Corporate Law” that was cited in McCormick’s ruling.
“Given the excessive stakes concerned, it’s doubtless that Tesla will enchantment the choice,” Kastiel mentioned in an e mail. In the absence of a profitable enchantment, “any new compensation association with him must be assessed” in gentle of McCormick’s resolution, Kastiel mentioned.
In the 2018 CEO compensation plan, Tesla’s board awarded Musk a dozen tranches of inventory choices that might end vesting in 2022 and have been primarily based on milestones, together with many centered on inventory value will increase.
Between the start of 2018 and the top of 2022, Tesla shares soared nearly 500% as Musk promised to show Tesla into not only a dominant EV model, however a robotaxi firm and photo voltaic juggernaut, amongst different issues. The S&P 500 gained 44% over that stretch, whereas the Nasdaq rose 52%.
Eric Talley, a professor at Columbia Law School, instructed CNBC that, ought to the ruling stand, Musk will lose his choices however not any shares he beforehand held. The transfer would lower the variety of shares excellent, probably bolstering the worth of every share held by investors.
“A bunch of choices can be returned to Tesla’s coffers, which is vastly accretive to inventory worth,” mentioned Talley, who wasn’t concerned within the case. On the opposite hand, Talley identified, “Tesla has a really grumpy CEO who would possibly wish to take his ball and go residence. Thus far, buying and selling suggests these two components have been a wash.”
Tesla shares are down barely because the Delaware court’s resolution in late January. They’re down near 25% for the 12 months, whereas main indexes are up.
Musk voiced a powerful choice for moving his businesses out of Delaware following the court’s resolution, and inspired others to take action as properly.
He moved the incorporation location for his mind pc interface firm, Neuralink, from Delaware to Nevada, filings revealed final week. He’s additionally been an enormous proponent of Texas in recent times, personally relocating there from California, and constructing large complexes for SpaceX and Tesla within the state, which has no private revenue taxes and a a lot decrease enterprise tax price.
Author Walter Isaacson, who printed a 688-page biography on Musk final 12 months, instructed CNBC’s “Squawk Box” on Monday that if the ruling does not get overturned, “it is going to damage Delaware.”
“People will say, ‘Wait, wait, you imply 5 years after one thing occurs, eight years after one thing occurs, you will return and undo it?'” Isaacson mentioned.
Tulane Law School professor Ann Lipton had a special take.
“It’s a really thorough opinion and the Supreme Court ought to give nice deference to the factual findings of the trial court,” Lipton mentioned.
In phrases of what shareholders ought to ask of Tesla’s board now, Kastiel mentioned, “Tornetta and up to date media studies on Musk have emphasised the significance of correct and detailed disclosure of the ties between controlling shareholders and administrators.”
There’s a extra elementary concern at play, Kastiel mentioned, relating to company governance in circumstances the place a “famous person CEO” is operating the present.
“As lengthy as the CEO is perceived as a star and the corporate depends upon the CEO’s imaginative and prescient and management, even nominally unbiased administrators — these with out robust ties to the CEO — could have issue monitoring the CEO’s conduct,” he mentioned.
Kastiel additionally mentioned that the choice doubtless makes Musk and Tesla extra weak to different sorts of lawsuits.
“Plaintiffs might have a greater probability of advancing their claims by probably leveraging the Tornetta findings to argue that almost all of the Tesla board shouldn’t be unbiased of Musk,” he mentioned. “To mitigate this danger, Tesla might want to considerably improve the independence of its board and nominate new unbiased administrators who wouldn’t have robust ties to Musk.”