Buyout or No Buyout, Musk’s Erratic Behavior Is a Major Problem

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Elon Musk has always been a boundary-pushing visionary. Tesla (NASDAQ: TSLA ) stock bulls such as fund manager Ross Gerber like that. Gerber has previously said that you want your management teams to be a little crazy. People who do everything by the rules are unlikely to have the sort of charisma, daring and cleverness to launch a company from the drawing board to the big leagues.

That said, there's a difference between some unorthodox behavior and ignoring the rules entirely. And over the past three or so months, Musk has been pushing much closer to crossing the line. His bizarre behavior with insulting the Thai cave rescue diver in particular seemed like an ugly move with little benefit to either Tesla or Musk personally.

It all came to a head on Tuesday as Musk cryptically announced a going-private offer for Tesla on Twitter (NYSE: TWTR ). He followed this up by wishing everyone "good morning" and then answering more questions about the takeover offer in his Twitter feed. Finally, the NASDAQ halted trading on the stock, and, several hours later, Tesla put up a letter on its website explaining the alleged going-private arrangement.

While much remains in flux, this is certainly one of the weirdest market events I've seen in my years working in or writing about finance. It's bizarre to announce deals on Twitter, it's unprecedented to release information like this without an SEC filing first, and it's baffling for Musk to claim the deal has secured funding without any backing from specific banks. All in all, I agree with the doubters who think this is the latest in Musk's fixation of getting revenge on short sellers.

Musk's Short Seller Obsession

In recent months, Musk seems to have become preoccupied with short sellers betting against the company. While Musk has engaged in a variety of questionable actions recently, much of it has centered around short sellers. Previously on Twitter, for example, he appeared to be digging deep into the personal lives of reporters, such as Linette Lopez, who had written critically about the company.

That led to a bizarre situation with the anonymous author and Twitter-user Montana Skeptic. Reportedly, Musk discovered Montana Skeptic's real personal information. Someone from Tesla called Montana Skeptic's boss and demanded that Skeptic stop writing about Tesla, or else there would be consequences. It's unclear precisely what happened next, but Montana Skeptic has gone silent. Whether or not Montana Skeptic's criticism of the company was accurate, a fact-based response to his concerns would have been much preferred. CEOs should be above the fray, rather than intimidating reporters and independent analysts.

It appeared with theearnings calllast week that Musk had toned back his short-selling obsession. During the conference call, Musk stayed much more on topic. He didn't lash out at analyst questions for being boring, or otherwise go far off script.

Musk Loses the Thread Again

But Tuesday's actions ruined any notion that Musk could contain himself. The letter Tesla posted to explain the going private idea was heavy on short-seller bashing rhetoric.

Musk claimed in the letter that: "As a public company, we are subject to wild swings in our stock price that can be a major distraction for everyone working at Tesla, all of whom are shareholders." That would be true of many high-tech money-losing growth start-ups. There's nothing unique about stock price volatility at Tesla. Additionally, Musk went straight after the short sellers, saying: "Finally, as the most shorted stock in the history of the stock market, being public means that there are large numbers of people who have the incentive to attack the company."

Again though, good companies explain why the short sellers are wrong and then deliver results. Netflix (NASDAQ: NFLX ) CEO Reed Hastings, rather than intimidating and attacking his critics, wrote a lengthy article explaining why prominent fund manager Whitney Tilson was wrong on his NFLX stock short thesis. Hastings' rebuttal proved correct with time. It was a classy response, and Tilson, in turn, covered his short position avoiding larger losses.

Short sellers only make money in the long run if a business under-performs. If Musk weren't so busy on social media, perhaps he'd have more time to deal with the operational issues at Tesla. He had previously said he would be more restrained after the comments attacking the rescue diver. But look where we are now.

Proposal Makes Little Sense for TSLA Stock

There are many issues with this proposed go-private offer. For one thing, Musk said on Twitter that it would allow shareholders to stay involved in the company. That would be quite unusual compared with the history of most leveraged buyouts. Even if an individual shareholder wanted to stick with the company, many (most?) holders couldn't, as they are passive institutional or index funds that simply replicate major baskets of stocks.

This means two things. For one, the buyer, whoever it is, would need to come up with most of the potential $72 billion to make a deal happen at $420 per share as the index funds aren't going to hold their TSLA stock off-exchange. And it's unclear who is putting up those sorts of funds. Musk said that the funding was "secured" but CNBC reported that no major U.S. banks said that they were participating. Additionally, the Tesla press release cleverly omitted any mention of financing for the purported deal.

The other issue is that this would likely be an unattractive holding for individual investors as well. By removing the NASDAQ listing, retail shareholders would have no easy way to convert their TSLA stock into cash. Perhaps they could sell on the pink sheets, or via a private market. But the SEC historically has been clear about not offering common stock to unaccredited individual investors - Musk's aim to keep ordinary investors in TSLA stock while avoiding public regulatory scrutiny seems like a clear dodge around the spirit if not the letter of the SEC's law.

Tesla's Board Needs to Take Action

In the letter posted on Tesla's website, Musk suggests that Tesla could return to public markets once it is a more mature company. Musk states that Space-X is running more efficiently because it is private. And that Tesla could benefit from that same environment. Once Tesla is larger and more stable, it could go back to public scrutiny. This argument makes little sense though. Space-X is hardly a mature company either. What recurring profitable business does it have going?

The truth is that we don't know how Space-X is doing. And that's fine. But since Musk decided to bring Tesla public, he and the board have an obligation to treat those shareholders responsibly. That includes complying with SEC regulation, disclosing information accurately and promptly, and not trying to manipulate the stock. Unfortunately, this $420 offer smells like it could be a ruse. The board should be asking some serious questions to Musk about his behavior before government regulators take action.

At the time of this writing, the author was short TSLA stock. He may trade in TSLA stock within 72 hours.

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The post Buyout or No Buyout, Musk's Erratic Behavior Is a Major Problem appeared first on InvestorPlace .

The views and opinions expressed herein are the views and opinions of the author and do not necessarily reflect those of Nasdaq, Inc.

The views and opinions expressed herein are the views and opinions of the author and do not necessarily reflect those of Nasdaq, Inc.

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