Tesla's board has been silent since Elon Musk's $56 billion pay package was revoked

Elon Musk, chief govt officer of Tesla Inc and X (previously Twitter) Ceo speaks on the Atreju political conference organized by Fratelli d’Italia (Brothers of Italy), on December 15, 2023 in Rome, Italy. 

Antonio Masiello | Getty Images

Two weeks after a Delaware courtroom dominated that Tesla should rescind Elon Musk’s $56 billion pay bundle, the corporate’s board stays mum on what the choice means for shareholders or what’s subsequent for the mercurial CEO.

In her 200-page opinion on Jan. 30, Chancellor Kathaleen McCormick referred to as the pay plan the biggest in public company historical past, and stated it was agreed upon by folks “who were beholden to Musk.” Since then, Musk has lashed out on the courtroom, posted on X, “Never incorporate your company in the state of Delaware,” and stated Tesla would maintain a shareholder vote to maneuver its website of incorporation to Texas.

Tesla hasn’t but issued an SEC submitting to inform shareholders of the ruling.

The choice got here shortly after Musk indicated that he is pushing for much more management of Tesla, posting on X in mid-January that he needed roughly 25% voting management earlier than turning the corporate into a frontrunner in synthetic intelligence and robotics. Musk is already constructing an AI firm referred to as xAI outdoors of Tesla.

The subsequent step within the compensation case is an “implementing order” that might be hashed out between the courtroom, Musk’s workforce and the legal professionals representing shareholder Richard Tornetta, a former heavy steel drummer who was the plaintiff within the 2018 lawsuit filed on behalf of all Tesla buyers.

As shareholders wait out solutions, Tesla’s eight-person board, which incorporates Musk, his brother Kimbal, Chairwoman Robyn Denholm and former Tesla know-how 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 workforce might nonetheless pursue a last-minute settlement. While Varallo stated he has no information of Musk’s plans, he stated he expects Musk to enchantment the choice to the Delaware state Supreme Court.

“I’d give you very high odds on that,” Varallo stated.

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 high stakes involved, it is likely that Tesla will appeal the decision,” Kastiel stated in an e mail. In the absence of a profitable enchantment, “any new compensation arrangement with him will have to be assessed” in gentle of McCormick’s choice, Kastiel stated.

‘Bunch of choices could be returned’

In the 2018 CEO compensation plan, Tesla’s board awarded Musk a dozen tranches of inventory choices that may end vesting in 2022 and had been primarily based on milestones, together with many targeted on inventory worth will increase.

Between the start of 2018 and the tip of 2022, Tesla shares soared virtually 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, doubtlessly bolstering the worth of every share held by buyers.

“A bunch of options would be returned to Tesla’s coffers, which is hugely accretive to stock value,” stated Talley, who wasn’t concerned within the case. On the opposite hand, Talley identified, “Tesla has a very grumpy CEO who might want to take his ball and go home. Thus far, trading suggests those two factors have been a wash.”

Tesla shares are down barely for the reason that Delaware courtroom’s choice late final month. They’re down near 25% for the yr, whereas main indexes are up.

Musk voiced a powerful desire to transfer his companies out of Delaware following the courtroom’s choice, and inspired others to take action as effectively.

He moved the incorporation location for his mind laptop interface firm, Neuralink, from Delaware to Nevada, filings revealed final week. He’s additionally been a giant proponent of Texas in recent times, personally relocating there from California, and constructing huge complexes for SpaceX and Tesla within the state, which has no private earnings taxes and a a lot decrease enterprise tax charge.

Author Walter Isaacson, who printed a 688-page biography on Musk final yr, instructed CNBC’s “Squawk Box” on Monday that if the ruling does not get overturned, “it’s going to hurt Delaware.”

“People will say, ‘Wait, wait, you mean five years after something happens, eight years after something happens, you’ll go back and undo it?’” Isaacson stated.

Tulane Law School professor Ann Lipton had a distinct take.

Tulane Law professor Ann Lipton on Elon Musk's pay package, legal impact of Tesla's move to Texas

“It’s a very thorough opinion and the Supreme Court should give great deference to the factual findings of the trial court,” Lipton stated.

In phrases of what shareholders ought to ask of Tesla’s board now, Kastiel stated, “Tornetta and recent media reports on Musk have emphasized the importance of accurate and detailed disclosure of the ties between controlling shareholders and directors.”

There’s a extra elementary concern at play, Kastiel stated, relating to company governance in circumstances the place a “superstar CEO” is operating the present.

“As long as the CEO is perceived as a star and the company depends on the CEO’s vision and leadership, even nominally independent directors — those without strong ties to the CEO — will have difficulty monitoring the CEO’s conduct,” he stated.

Kastiel additionally stated that the choice doubtless makes Musk and Tesla extra susceptible to different varieties of lawsuits.

“Plaintiffs may have a better chance of advancing their claims by potentially leveraging the Tornetta findings to argue that the majority of the Tesla board is not independent of Musk,” he stated. “To mitigate this risk, Tesla will need to significantly enhance the independence of its board and nominate new independent directors who do not have strong ties to Musk.”

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