Elon Musk is now Twitter’s single largest shareholder, and more recently, he was also announced as a new member of the social media company’s Board of Directors. Musk’s recent moves, however, might result in new SEC troubles.
SEC filings on Monday revealed that Tesla CEO Elon Musk had taken a 9.2% stake on Twitter, making him the company’s single largest shareholder. The document indicated that Musk acquired his Twitter stake on March 14, though it also stated that the investment would be passive. The disclosure form further suggested that Musk was not planning on taking control of Twitter.
Considering that the disclosure of Musk’s 9.2% stake in Twitter was announced just yesterday, a full 21 days passed between the time of his stock purchase and its announcement. This is where the issue lies, at least according to SEC rules. As per SEC rules, an investor such as Musk who acquires a passive stake of 5% or above must disclose the stock acquisition within ten calendar days.
“A pledgee of securities who prior to default lacks the power either to vote or to dispose of the securities is not considered to be the beneficial owner of the securities, provided the pledge agreement is bona fide and was not entered into with the purpose or effect of changing or influencing the control of the issuer.
“If the conditions of Rule 13d-3(d)(3) cannot be met by the pledgee, the pledgee will be deemed to have acquired beneficial ownership of the pledged securities on the date of default and therefore the pledgee must file a Schedule 13D within 10 days thereafter,” the SEC rules noted.
If one were to follow the SEC’s rules, Musk’s Twitter stake should have been disclosed around March 25. Interestingly enough, that date was the day when the Tesla CEO opened a poll on Twitter asking users if they believed the social media platform was adhering to free speech principles. Over two million users participated in the poll, with over 70% of respondents stating that Twitter does not adhere to the principles of free speech.
Former senior SEC enforcement attorney David Rosenfeld noted in a statement to The Wall Street Journal that the late filing would do no favors for the CEO. Rosenfeld noted that Musk’s actions with his Twitter stake would likely not benefit his ongoing battle with the SEC either.
“He is making all these claims the SEC is harassing him and going after him for nothing, and if he goes ahead and violates a pretty straightforward rule, that is certainly not going to help his argument with the judge,” Rosenfeld said.
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