WILMINGTON, Del. – Attorneys for a Tesla shareholder urged a Delaware judge on Tuesday to invalidate a 2018 compensation package awarded by the company’s board of directors to CEO Elon Musk that is potentially worth more than $55 billion.
The shareholder’s lawyers argue that the compensation package should be voided because it was dictated by Musk and the product of sham negotiations with directors who were not independent of him. They also say it was approved by shareholders who were given misleading and incomplete disclosures in a proxy statement.
Delaware courts often defer to the “business judgment” of corporate directors in decision-making absent a showing of wrongdoing. But attorney Greg Varallo argued that the Tesla defendants should be required to show that the compensation plan was “entirely fair” to stockholders because Musk was a controlling shareholder.
Defense attorneys countered that the pay plan was fairly negotiated by a compensation committee whose members were independent, contained performance milestones that were so lofty they were ridiculed by some Wall Street investors, and blessed by a shareholder vote that was not even required under Delaware law. They also argue that Musk was not a controlling shareholder because he owned less than one-third of the company at the time.
Tuesday’s arguments followed a November trial at which Musk denied that he dictated terms of the compensation package or attended any meetings at which the plan was discussed by the board, its compensation committee, or a working group that helped develop it.
Musk also downplayed the notion that his friendships with certain Tesla board members, including sometimes vacationing together, mean that they were likely to do his bidding.
The plan called for Musk to reap billions if Tesla hit certain market capitalization and operational milestones. For each incidence of simultaneously meeting a market cap milestone and an operational milestone, Musk, who owned about 22% of Tesla when the plan was approved, would get stock equal to 1% of outstanding shares at the time of the grant. His interest in the company would grow to about 28% if the company’s market capitalization grew by $600 billion.
Tesla has achieved all twelve market capitalization milestones and eleven operational milestones, providing Musk nearly $28B in stock option gains, according to a post-trial brief filed by plaintiff’s attorneys. The stock option grants are subject to a five-year holding period, however.
Varallo told Chancellor Kathaleen St. Jude McCormick that Musk should be force to give back some, if not all, of the stock option grants he has earned.
Defense attorney Evan Chesler said the compensation package was a “high-risk, high-reward” deal that benefitted not just Musk, but Tesla shareholders who have seen the value of the company based in Austin, Texas, climb from $53 billion to more than $600 billion, having briefly hit $1 trillion last year.
Chesler also said Tesla made sure that the $55 billion compensation figure was included in the proxy statement because the company wanted shareholders to know that “this was a heart-stopping number that Mr. Musk could earn.”
“Nobody’s laughing now,” added Chesler, noting that, while some Wall Street investors bet against Tesla, the company’s leadership in electric-vehicle manufacturing has transformed the U.S. automobile industry.
Following Tuesday’s hearing, McCormick ordered yet another round of briefing on various legal issues.