Elon Musk overworked, ill-considered tweets about going private making Tesla Board look for a #2
By: +David Herron; Date: August 16, 2018
A few days ago Elon Musk idly tweeted that he's considering taking Tesla private at $420 per share, and that funding is lined up. At least this wasn't posted on April 20. After initial excitement some realists started studying this, asked where the funding was, the SEC started mulling a stock manipulation investigation, and so on. And now the NY Times has an article following an hour-long interview with Musk, describing him as overworked, and the Board is worried and is looking for someone to take over some of Musk's responsibilities.
Normally when a company decides to go private, there is a process - the Board and executive management study the issue carefully and it's planned out before being announced and the SEC is properly notified. That's not what Elon did.
According to the NY Times article, Elon had just left his Los Angeles home and was driving to the Airport in his Tesla Model S. While en-route to the Airport he posted the tweet, and there was no review by anyone at Tesla.
By the way - the article does not say Elon was being driven to the Airport - it said he was driving to the Airport. Maybe someone in his position always has a driver, or maybe he actually drove himself. If the latter, he's tweeting and driving? Is that a good idea? I hope that he was being driven by someone.
Elon Musk under stress
The article goes on to describe Elon Musk as under a great deal of stress, and saying that this year has been the worst of his career. He is working 120 hours a week, and has not taken a vacation in forever.
According to another NY Times article, the SEC has subpoened Tesla over the tweet and some other actions by Elon Musk.
Some Board members are uring Musk to lay off Twitter and to focus on building cars and launching rockets. The Independent Board members have hired an outside law firm to represent Tesla in the SEC investigation.
Tesla has hired Goldman Sachs to work on the possible deal to take Tesla private.
Abnormal method to announce a going-private deal
According to yet another NY Times article ... The normal method for "Leveraged Buy Outs" (which this is) involves:
Still, this is not the way multibillion-dollar leveraged buyouts are typically announced. Companies would normally line up banks, private equity firms or other deep-pocketed investors to agree in advance to provide money to finance the purchase of shares.
That's not what Musk did. He just made an offhand, flip, posting on Twitter.
Where the SEC is concerned is this:
But the S.E.C. has also advised that intentional releases of market-moving information on social media platforms or websites must be accompanied by a simultaneous release to the broader public. The delay between Mr. Musk’s tweet and Tesla’s corporate announcement could be of interest to the S.E.C., said Michael Liftik, a former deputy chief of staff at the commission who is now a partner at the law firm Quinn Emanuel Urquhart & Sullivan.
As a result of Musks' off-hand tweet, he may have opened the company to a shareholder lawsuit.
Funding might not actually be lined up
In the LA Times, we learn that the funding might not actually be lined up.
The funding is to primarily come with the Saudi Sovereign Wealth Fund. Uh...? Say what? Oil billionares looking to buy out Tesla? This has really bad optics. But it's even worse than that.
Elon Musk seems to have thought the Saudi's were serious about going forward with the deal, but that's not actually true. Discussions with the Saudi's have been ongoing since early 2017. There are lots of unanswered questions
According to Elon Musk -- “subject to financial and other due diligence and their internal review process for obtaining approvals," and that the Saudi's “also asked for additional details on how the company would be taken private, including any required percentages and any regulatory requirements.”
Beyond questions from the Saudi's are US Government questions. For example:
the Committee on Foreign Investment in the United States, or CFIUS, a Treasury Department agency that rules on foreign ownership of American companies, might well expect a say in the matter.
Another question is whether many of the current shareholders would be able to stay shareholders if Tesla went private. Currently 60% of Tesla shares are held by "Institutions" (a.k.a. Mutual Funds). Institutions generally cannot hold shares in private companies. Therefore would the Saudi Sovereign Wealth Fund end up owning 60% of Tesla's shares?
The LA Times article ends with this:
Musk seems to be taking it on faith that the legions of institutional investors and mom-and-pop shareholders will stick with him through thick and thin. That’s not a sign of confidence, but rather the sign of someone who believes his own press releases. It’s not entirely out of the range of possibilities that Musk will be able to take Tesla private, and even that the Saudi Arabians will be backing him all the way. But if you’re an investor in Tesla now, how much do you want to bet?