Investor's Corner

Tesla SolarCity merger may be delayed by shareholder lawsuits

By Marco Papa

Posted on September 19, 2016

A special stockholder meeting in connection with Tesla’s proposed SolarCity acquisition is coming soon.

Over the weekend, Tesla published two items related to the acquisition: a notice of an upcoming event, the Record Date for the Upcoming Tesla Special Stockholder Meeting in Connection with SolarCity Acquisition, and an update the the S-4 Registration Statement, a.k.a the Merger Proposal.

In the first announcement Tesla intends to inform Tesla investors that the “record date for the determination of Tesla stockholders entitled to […] vote at the Tesla special stockholders meeting in connection with the SolarCity acquisition will be sometime during the week of September 19, 2016.” In layman terms, this means that sometime this week, anyone that “settled” a TSLA stock purchase 3 days prior to this date will have the right to vote at the Tesla special stockholders meeting.

Because of the T+3 system of settlement presently used in North America whereby stock trades settle three business days after the transaction is carried out, anyone purchasing TSLA stock this week will likely be unable to vote at the Tesla special stockholders meeting.

The second filing is an update to the original S-4 Registration Statement of August 31, 2016. Comparing the two version of the Merger Proposal, shows that the documents are effectively identical, except for a section entitled “Litigation Relating to the Merger” (on page 23 of the latest PDF).

In this section of the Merger Proposal, Tesla discloses that “between September 1, 2016 and September 14, 2016, four lawsuits were filed in the Court of Chancery of the State of Delaware by purported stockholders of Tesla challenging the proposed Merger.” These lawsuits were filed by the City of Riviera Beach Police Pension Fund, Ellen Prasinos, the Arkansas Teacher Retirement System, and P. Evan Stephens.

In the lawsuits it is alleged “that the members of the Tesla Board breached their fiduciary duties in connection with the proposed Merger and, in some cases, that SolarCity and members of the SolarCity Board aided and abetted breaches of fiduciary duties and that certain individual defendants would be unjustly enriched by the proposed Merger.”

Additionally the lawsuits claim that “Member of the Tesla Board [..] [in the S-4 document] filed on August 31, 2016 allegedly failed to disclose material facts in connection with the proposed Merger.”

The main goal of the lawsuits is the rescission of the proposed Merger. Tesla of course believes that the actions are without merit.

What does this all means? Probably not too much. The record date will be announced this week, and soon after the Tesla special stockholders meeting in connection with the SolarCity acquisition will be held. Approval is expected, given that most of the large shareholders, Mutual Funds and major Hedge funds, have already announced their approval.

The lawsuits, unless thrown out by the appointed judge, will likely only delay the actual closing off the agreement. One thing to also note is that almost every merger agreement results in shareholders lawsuits, so the Tesla situation is fairly common.

TSLA Stock Action

TSLA stock is now officially back on the run. Looking at today’s chart, most of the technical indicators have now turned positive: we have 3 green bars of the Heikin-Ashi chart (the pay-day-cycle, showing the momentum is on the upside), the MACD has turned positive and the MACD averages are “pinching”. This was enough for me to initiate a buy on Friday of TSLA January 2017 $200 calls.