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(Bloomberg) – Elon Musk was acting as a true CEO as Tesla Inc. evaluated the purchase of electricity supplier SolarCity in 2016, his longtime ally and fellow Tesla director Antonio Gracias told a judge.
A two-week trial over the billionaire CEO’s role in the $ 2 billion deal ended on Monday, and now Judge Joseph Slights III must decide whether Musk – who was the chairman and largest shareholder at the time of the solar company – correctly withdrew from the agreement to avoid conflicts of interest.
Gracias, the last witness, was questioned by Musk’s lawyer about the role of the 50-year-old boss in the acquisition. He pointed out that Musk had stepped down from pricing the deal and voting on the acquisition, but had a legitimate role to play.
“He recused himself from the deal, but not from doing his job,” Gracias said during questioning by Daniel Slifkin. He said he and Musk made themselves “available” to Tesla’s board for any questions about the purchase.
Shareholders who sued Musk say the purchase was tainted by his influence with his board of directors and his ties to the solar company. In addition to his own role there, his CEO was Lyndon Rive, his cousin.
Gracias, director of tech investment firm Valor Equity Partners, was an early investor in Tesla and also owned shares of SolarCity and served on the solar firm’s board. Asked by Christine Mackintosh, a pension fund lawyer pursuing the deal, he said he had to decide which side of the deal to work on and chose Tesla over SolarCity.
At one point, Mackintosh said board minutes showed Musk and Gracias were present when other directors were discussing how much to pay for SolarCity.
“If that’s what the minutes say, that’s correct,” said Gracias, who is expected to step down from Tesla’s board in October. He said he hadn’t paid attention to the pricing discussion because, like Musk, he had been recused from considering the matter.
The judge, who heard the complex case in Delaware Chancery Court without a jury, can take months to decide whether to force Musk to dig into his pocket and return the money Tesla paid for SolarCity. So far, Slights has looked into Musk’s challenge, questioning Tesla President Robyn Denholm at length last month about her knowledge of Musk’s activities as board members gathered information about the ‘OK.
“The evidence shows that there were discussions between Mr. Elon Musk and Mr. Rive outside of the board process,” Slights said, according to a transcript of the trial.
“I’m not surprised, to be honest,” Denholm replied, “but I know it didn’t affect the negotiation, because Elon never told me what he thought we should – you know. , whether we should take something into account or not take into account something.
Denholm said Musk and Gracias were “exempt from votes, in terms of the board,” but added that “we’ve actually welcomed them, in terms of input, into some deliberations.”
Read more: Musk concludes testimony by defending his role in SolarCity deal
Musk, who was at the stand for two days and was the first witness, denied playing a substantial role in the SolarCity buyout and noted that Denholm, as Tesla’s senior manager on the deal, had set the price. and the conditions.
“I was active in providing the council with the documents necessary to make a decision,” he told the court. “I thought it would be my duty.”
As the richest person in the world, with a net worth of around $ 195 billion, Musk will still be in pretty good shape if he loses the case and has to hand over hundreds of millions, if not all of the $ 2 billion. dollars, to the electric vehicle manufacturer. And an unfavorable ruling is unlikely to transform the way it operates, said Larry Hamermesh, a University of Pennsylvania law professor and Delaware corporate law expert. personality or his approach to corporate governance issues, ”Hamermesh said. “People constantly break their fiduciary obligations and have to pay for it. For some people, it’s just a cost of doing business.
Yet $ 2 billion is $ 2 billion.
Musk on the stand: cool, combative and firm on SolarCity
Slights has previously said that Musk, although he owns far less than a majority stake in Tesla, currently at 17%, is using his “visionary” personality and his connections to other Tesla directors to smooth the path to success. OK. A central question for the judge to resolve is whether, as Tesla’s largest shareholder, Musk dominated the board so much that final approval was a precursor.
In a colorful and at times irreverent stint on the witness stand, Musk said he tried to be helpful to the board as he evaluated the deal, but never sought to roll it.
“To be honest, I don’t want to be the boss of anything,” he told Slights. “I don’t want to be CEO. I tried not to be CEO of Tesla, but I had to or he would die. I rather hate being a boss. I am an engineer.”
Perception of influence
Musk admitted to helping hire attorneys to guide the acquisition through board confirmation and holding weekly meetings to start a fire as part of the due diligence process. Additionally, he said the solar company was on a solid financial footing, but wrote internally that it needed to resolve its “liquidity crunch.” As it turned out, SolarCity was hemorrhaging cash and was in danger of defaulting on its debt.
But he dismissed the allegations of impropriety, having recused himself from deliberations on the deal and excluded Tesla’s directors from the final approval vote.
That may not have been enough, said Charles Elson, a professor at the University of Delaware who studies board behavior and director of the school’s Weinberg Center for Corporate Governance. Conflicting directors must break out of a deal to free it even from a hint of influence, he said. “When you have a monitor like Mr. Musk involved in organizing an acquisition and gathering the information the board will use to approve it, you raise very serious questions about the independence of the whole process. Elson said.
Nature of challenge
These are the questions that the plaintiffs have raised, pointing to a 2020 Chancellery Court ruling criticizing challenged administrators for not fully opting out of the acquisition process.
One of the judge’s questions in Denholm was whether she had “a clear idea of how the challenge should work” in the SolarCity deal. The former Australian telecommunications executive said she had banned Musk and Gracias from voting “in terms of whether or not the deal was done, as well as the price.” the point where we had discussed issues that we needed Elon’s or Antonio’s technical input or something like that, then we would ask them to leave.
The case is In Re Tesla Motors Inc. Stockholders Litigation, No. 12711, Delaware Chancery Court (Wilmington).
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(Updates with testimonial on the pricing discussion below the first photo.)
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