Some analysts expect the company to try to tap the markets. Mr. Musk has said he does not expect to do so by issuing new shares. But Mr. Osborne, the Cowen analyst, wrote in a research note Sunday that he expected Tesla to raise $2 billion in the fourth quarter through an issue of convertible bonds. But the botched effort to take the company private could make it harder.
What cloud does the S.E.C. cast?
The Securities and Exchange Commission’s interest in Mr. Musk’s “funding secured” declaration has not been put to rest with the decision to stay public. The uncertainty about regulatory penalties could seriously hinder raising capital and prompt Wall Street firms that arrange securities offerings to progress with caution.
“It was clearly incomplete disclosure,” Peter Henning, professor of law at Wayne State University, said in an email. “The issue is going to be whether the S.E.C. decides it was fraudulent, whether it misled investors. The danger for Tesla is if the S.E.C. decides to go forward with a fraud case.”
Banks and other firms providing financing will want clarity about the potential course of the investigation, because underwriters and advisers would face legal penalties for any misleading or incomplete disclosures in the offering documents, Mr. Henning said.
“As part of the due diligence, there will be a demand for lots of disclosure, which Tesla (and Musk) don’t seem to like to do,” he said.
(In announcing that Tesla was dropping the maneuver to go private, Mr. Musk declared in his statement on Friday night that he was nonetheless convinced that there had been “more than enough funding” for it.)
Tesla’s directors may also have a more fundamental question to consider: whether Mr. Musk is the right person to lead the company. “Given the drama he’s created, and the S.E.C.’s investigation around that drama, the question is where the board goes next,” said Charles M. Elson, a professor specializing in corporate governance at the University of Delaware. “They have to decide what to do with him.”
On Friday night, the board members declared, “We fully support Elon as he continues to lead the company moving forward.”
David Gelles contributed reporting.