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Tom Eckert's avatar

Great observations Mr Carter! Sadly I think we need a game changing asshole like Trump to change the sad dynamic of this country. If he did nothing else his exposure of the entrenched bureaucracy known as the Deep State is worthy of praise. I don't care about his style but substantively he's been one of the better presidents we've ever had. Give me an asshole like Trump over any one of the corrupt mo-fo's in Washington any day! On both sides of the aisle!

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Jeffrey L Minch's avatar

I do not like the courts standing in for the shareholders and, by extension, the theoretical representatives of the shareholders, but Delaware Corporate law is designed to provide efficiency for the companies and fairness for minority shareholders.

That is a feature and not a bug of the Delaware Chancery Court.

In the Musk case the allegation -- proven at trial and in depositions -- was that Musk's employment agreement was not negotiated at arms length, was not properly disclosed to the shareholders before they voted for it, and was excessive.

1. Musk proposed the agreement rather than the compensation committee of the board.

2. The board of directors was composed of persons with a very close personal relationship with Musk -- his brother was on the board for goodness sake -- and those who reported to Musk and those who were beholding to Musk for having created once in a lifetime wealth.

There was essentially no board member who was solely an advocate for the shareholders and there was a majority of toadies including the guy's brother.

3. There was no real negotiation and the negotiation that did happen was simply wordsmithing. No push back at all. The board's role was reduced to scrivenering, rather than negotiating.

One of the critical reasons why the Chancellor voided the agreement was simply because of its formation and the lack of rigor in its negotiation.

The compensation committee of the board of directors did not play its appropriate role in the negotiation.

Once one gets over the manner in which the employment agreement came to life, there is the issue of its sheer magnitude. It was the largest CEO comp deal in the history of the US.

Musk's 2012 employment agreement, at its time, was also the biggest CEO comp deal in US history.

The guy has delivered tons of value to the shareholders, so I personally am not particularly fixated on the size, but it was bloody gargantuan. In fairness, Musk takes no salary.

All of this brings us to the issue of how the deal was communicated to the shareholders before they approved the deal.

The Chancellor found that the disclosures prior to the vote were inadequate and failed to describe the manner in which it, the employment agreement, was drawn and negotiated and the magnitude of shareholder dilution it created.

The Chancellor found that the shareholders did not have adequate information -- purposely -- to make an informed decision on the largest CEO comp deal in US history.

For those reasons, the Chancellor voided the agreement. Now, the board directors has two issues:

1. The board has to re-make itself so it isn't a bunch of Musk toadies.

2. The board has to make a new deal with Musk.

This is going to be hard task for the obvious reasons, but Musk has made it harder as he has recently demanded at least a 25% voting control (he currently has 13% because he sold a bunch of Tesla stock to fund his Twitter/X adventure).

As hard core a capitalist as I am, I would have to agree with the Chancellor in voiding the Musk agreement.

None of this trivia about Musk in any way impacts the nature of your commentary.

JLM

www.themusingsofthebigredcar.com

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