Elon Musk wins Tesla shareholder battle to keep his record-breaking pay

Tesla (TSLA) shareholders reapproved Elon Musk’s record-breaking pay pact and signed off on a new Texas incorporation in a show of support for the CEO as he fights legal battles on multiple fronts.

"Hot damn, I love you guys," Musk said after the votes were tabulated while speaking at the company's annual shareholder meeting in Austin, Texas.

Tesla said 72% of votes cast by shareholders, excluding Musk and his brother Kimbal, were in favor of a $56 billion compensation package that was awarded in 2018 and then voided this year by a Delaware judge. That pay plan is now valued at roughly $48 billion.

The pay pact received 73% support when it was first granted six years ago.

The voting count was 84% for a reincorporation in Texas instead of Delaware — a move made in reaction to the January ruling against Musk's pay. That total also excluded shares owned by Musk and his brother.

Musk said Friday on X, the social media platform formerly known as Twitter that he owns, that he would send a cake to Delaware with the Latin phrase "Vox Populi, Vox Dei" as a "parting gift."

Tesla’s stock was little changed premarket on Friday and fell 1% in early trading. It rose 3% during market hours Thursday after Musk previewed this final outcome by saying that both proposals were "passing by wide margins."

Musk became the latest of many bosses this year who successfully defeated attempts to tamp down their pay.

Just two companies out of 340 that held such shareholder votes as of June 6 had their executive pay packages rejected, according to ISS-Corporate. That failure rate of 0.6% is lower than any full year since 2020.

But Thursday’s results may not spell the end of the corporate governance drama at Tesla.

For one, shareholders unhappy with the result could challenge its legality before the same Delaware court that voided Musk’s pay earlier this year.

One shareholder already filed a lawsuit last week in that state challenging both Tesla's pay and redomestication proposals, alleging that Musk used "strong-arm, coercive tactics" in his efforts to persuade shareholders to ratify the proposals.

"It is likely Tesla will end up back in Delaware courts defending the package against lawsuits," Jerry Comizio, a business law professor at American University's Washington College of Law, told Yahoo Finance.

Comizio said shareholders might claim that the process leading to Thursday's vote suffered from the same type of disclosure, corporate governance, and fiduciary duty deficiencies that caused the Delaware judge to invalidate the 2018 vote.

Elon Musk arrives at the 10th Breakthrough Prize Ceremony on Saturday, April 13, 2024, at the Academy Museum of Motion Pictures in Los Angeles. (Photo by Jordan Strauss/Invision/AP)
Elon Musk arrives at a prize ceremony in April at the Academy Museum of Motion Pictures in Los Angeles. (Photo by Jordan Strauss/Invision/AP) (Jordan Strauss/Invision/AP)

The Delaware judge, Kathaleen McCormick, ruled that Tesla’s board didn’t act "in the best interests" of Tesla shareholders in approving the $56 billion deal.

The central thrust of McCormick's decision, according to Case Western Reserve University School of Law corporate law professor Anat Alon-Beck, was that Tesla's board did not follow proper procedures and disclosures or address numerous conflicts of interest with Musk.

"They always had the opportunity to do so, but chose not to," Alon-Beck said. "Instead, they materially failed to comply with disclosure obligations to shareholders that have been central tenants of Delaware law for decades."

But corporate compensation and governance attorney Bob Lamm said it's possible the company disclosed enough this time around to insulate itself from added litigation.

"You can’t disclose everything," Lamm said. "At some point, the court’s got to say: 'Tesla, you've done your job.'"

The ongoing drama around the vote intensified in recent weeks as Tesla chair Robyn Denholm and Musk advocated forcefully for a newly submitted pay package that was similar to the original 2018 award invalidated by the judge.

Publicly, Denholm submitted an open letter urging shareholder approval of Musk’s compensation package.

"Fairness and respect require that we honor the collective commitment we made to Elon — a commitment that was, and fundamentally still is, about retaining Elon’s attention and motivating him to focus on achieving astonishing growth for our company," Denholm wrote in her letter.

Denholm’s choice of words — "retaining Elon’s attention and motivating him" — raised eyebrows, as most independent board chairs generally do not pen open letters urging shareholder approval of management pay packages, let alone claiming the compensation is needed to keep the CEO motivated.

Even before the 2018 pay package was invalidated by the Delaware court, Musk threatened shareholders about his divided attention, as he is in charge or spends significant amounts of time at SpaceX, X.com (formerly Twitter), and the Boring Co., among other ventures.

"I am uncomfortable growing Tesla to be a leader in AI & robotics without having 25% voting control. Enough to be influential, but not so much that I can’t be overturned," Musk said from his X account in January. "Unless that is the case, I would prefer to build products outside of Tesla."

Robyn Denholm, Chair of the Technology Council of Australia and Chair of the Board of Directors of Tesla Inc, during an address to the National Press Club of Australia in Canberra on Wednesday September 14th, 2022. (Photo by Alex Ellinghausen/Sydney Morning Herald via Getty Images)
Tesla board chair Robyn Denholm. (Photo by Alex Ellinghausen/Sydney Morning Herald via Getty Images) (Fairfax Media via Getty Images)

Case in point: Tesla recently had to deal with reports that Musk ordered Nvidia (NVDA) AI chips meant for Tesla to be diverted to X.com. Musk defended the move after the report's release, claiming Tesla lacked space to use the chips, and they would have sat in a warehouse otherwise.

In the days leading up to the vote, there were even more legal distractions for Musk and Tesla.

Late Tuesday the Employees' Retirement System of Rhode Island (ERSRI) filed another lawsuit in Delaware accusing Musk and his brother Kimbal Musk of selling a combined $30 billion of stock using inside information — that being the two knew the proceeds would be used to fund Elon's purchase of Twitter (now X) and that two brothers were also aware that Tesla's vehicle deliveries had fallen below projections.

The Wall Street Journal also published a story late Tuesday night alleging Musk had numerous inappropriate relationships with employees at SpaceX, the rocket and spaceship company Musk founded and where he still serves as CEO.

Then separately on Wednesday eight former SpaceX employees filed a lawsuit against Musk for sexual harassment and retaliation in California state court, alleging that Musk created an "unwelcome hostile work environment" based on his behavior, among other allegations.

Musk was apparently involved in some efforts to bring big shareholders over to Tesla's side.

He reportedly joined recent meetings with proxy adviser Glass Lewis and money management giants Vanguard Group, State Street (STT), and BlackRock (BLK), all of which are among the top five institutional holders of Tesla.

Glass Lewis and another proxy adviser, ISS, recommended that shareholders vote against the remuneration.

But Tesla’s lobbying campaign apparently succeeded with at least some of those giant investors. The New York Times reported Thursday that both BlackRock and Vanguard voted in favor of the pay package.

This time around, Tesla shareholders had slightly more information than they did before the vote on Musk’s pay six years ago.

Back then, in 2018, no one knew that Musk would satisfy all of the deal's revenue and operating milestones that unlock his right to purchase Tesla options at $70.

Had Musk failed to satisfy the escalating revenue and market cap requirements, his stock-option-based CEO compensation would have been zero.

He said Thursday in response to a question posed at the shareholder meeting that he has to own Tesla stock for five years.

"It’s not actually cash, and I can’t cut and run, nor do I want to," he said.

There were some smaller shareholder groups that came out against Musk's pay package, as well as one big one: Norway's $1.7 trillion sovereign wealth fund.

"We remain concerned about the total size of the award, the structure given performance triggers, dilution, and lack of mitigation of key person risk," Norges Bank Investment Management (NBIM), the operator of the fund, said.

The fund, which also opposed Musk's pay package in 2018, holds a $5.6 billion stake encompassing 31.57 million shares, or 0.99% of all shares outstanding, making it Tesla's seventh-largest shareholder, per Capital IQ.

And the California State Teachers' Retirement System (CalSTRS) also said it would vote against Musk's pay package, with the pension fund's chief investment officer telling CNBC the stock awards were "ridiculous." CalSTRS owns around 4.7 million shares of Tesla.

But some Musk supporters doubled down on the argument that his presence is necessary for the future of Tesla.

Longtime Tesla shareholder Baillie Gifford said it would vote in favor of Musk's package, according to Bloomberg sources, with the reasoning being the package was aligned with shareholder returns.

"Elon is the ultimate ‘key man’ of key man risk," billionaire Tesla investor Ron Baron wrote last week in an open letter arguing for approval of the pay package. “Without his relentless drive and uncompromising standards, there would be no Tesla.”

Some small stockholders took to social media to drum up votes and support for Musk. One who posted on X as @TeslaBoomerMama said Thursday, before the final vote was announced, that "your votes will help to remedy a true injustice."

"Don't mess with Tesla Retail Shareholders."

Correction: A previous version of this article misspelled attorney Bob Lamm's name. We regret the error.

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