In a lawsuit, filed on Thursday, the Securities and Exchange Commission (SEC) launched a scathing attack on the entrepreneur, accusing him of being a liar and asking the court to ban him from running Tesla or any other public company after he tweeted that that he had “funding secured” to buy out the stock. Here are five key takeaways from the agency’s complaint against Musk:
Jumping the Gun
Last month, Musk tweeted that he had “funding secured” to take Tesla private. The SEC disagreed, claiming that talks had taken place between the company’s CEO and officials from Saudi Arabia's sovereign wealth fund, but that terms of a deal were never discussed. (See also: SEC Sues Tesla CEO Elon Musk: What Happens Next?)
“The July 31 meeting lacked discussion of even the most fundamental terms of a proposed going-private transaction,” the SEC said. “For example, there was no discussion at the July 31 meeting of (1) any dollar amount or specific ownership percentage for the Fund’s investment in a going private transaction; (2) any acquisition premium to be offered to current Tesla shareholders; (3) any restrictions on foreign ownership of a significant stake in Tesla; (4) the Fund’s available liquid capital; (5) whether the Fund had any past experience participating in a going-private transaction; (6) any regulatory hurdles to completion of a going-private transaction; or (7) the board approval process necessary to take Tesla private.”
Incidentally, the complaint added that a deal to potentially take Tesla private might have been contingent on the company building a production facility in the Middle East, a condition that the electric car maker's board reportedly was not keen on.
So how did Musk come up with a $420 buyout price? He was thinking about weed, according to the SEC.
“He [Musk] calculated the $420 price per share based on a 20% premium over that day’s closing share price because he thought 20% was a 'standard premium' in going-private transactions,” the SEC said. “This calculation resulted in a price of $419, and Musk stated that he rounded the price up to $420 because he had recently learned about the number’s significance in marijuana culture and thought his girlfriend ‘would find it funny, which admittedly is not a great reason to pick a price.’”
Musk’s Colleagues Blindsided by Tweet
The SEC’s complaint points out that Musk did not speak with Tesla’s board, or anyone else for that matter, before tweeting that he had secured funding to take the company private. According to the filing, Tesla CFO, Deepak Ahuja, texted Musk 35 minutes after he dropped the bombshell on Twitter offering to draft a blog post or employee email. Musk apparently texted back: "Yeah, that would be great."
After responding to Ahuja, Musk allegedly sent an email to Tesla’s board of directors, general counsel and Ahuja confirming that an offer had been received to take the company private at $420.
“On August 2, 2018, after market close, Musk sent an email with the subject, ‘Offer to Take Tesla Private at $420,’ to Tesla’s Board of Directors, Chief Financial Officer, and General Counsel,” the SEC said. “In the email, Musk explained his reasons for wanting to take Tesla private, including that being public ‘[s]ubjects Tesla to constant defamatory attacks by the short-selling community, resulting in great harm to our valuable brand.’ In the email, Musk asked that the ‘matter be put to a shareholder vote at the earliest opportunity’ and stated that the ‘offer expires in 30 days.’” (See also: Tesla Seen Facing Wild 20% Swings Amid Uncertainty.)
Short Sellers Mentioned
Interestingly, the complaint, which largely focuses on allegedly false statements made, also devotes a paragraph to Musk's prediction that short sellers would "burn" and quotes various tweets of his on short sellers.
While it stops short of directly connecting Musk's actions with these statements, The New York Times' James Stewart said it could be "laying the groundwork for a motive and a potential criminal case."
SEC Seeks Hard Punishment
In its complaint, the SEC ordered that the defendant, Musk, be stripped of “any ill-gotten gains received as a result of the violations”, pay civil penalties and be “prohibited from acting as an officer or director” of Tesla or any other public company. This happens to be one of the most severe punishments the agency can impose against a corporate executive.