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Thu 16 Aug 2018 08:06 AM

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Elon Musk likely to face US national security review in a Tesla-Saudi deal

President Donald Trump signed legislation this week that expands the government's authority to investigate and potentially block foreign takeovers of domestic companies

Elon Musk likely to face US national security review in a Tesla-Saudi deal

Elon Musk will likely need clearance from US national security officials for any proposal to take Tesla private with financing from Saudi Arabia, just as the Trump administration steps up scrutiny of foreign investment in American technology.

The deal, if it becomes reality, would be among the first to be reviewed by US officials since President Donald Trump signed legislation this week that expands the government’s authority to investigate and potentially block foreign takeovers of domestic companies.

While many of the law’s provisions don’t take immediate effect, the measure underscores the administration’s intent to use the Committee on Foreign Investment in the US, known as CFIUS, to heighten scrutiny of foreign acquisitions.

“The new law makes it pretty clear that this administration is very keen on protecting US technology,” said Joseph Falcone, a partner at Herbert Smith Freehills in New York. “Any foreign investment in Tesla would at least notionally be of interest to CFIUS.”

A review by the panel, which is led by the Treasury Department, would complicate Musk’s bombshell proposal last week to take Tesla off the market, an announcement that has already drawn scrutiny by the Securities and Exchange Commission. Since Trump took office, CFIUS has scuttled about a dozen transactions, mostly from China, over concerns about risks to national security.

The automaker’s chief executive officer wrote in a blog post Monday that Saudi Arabia’s sovereign wealth fund first approached him in early 2017 about taking Tesla private. The Public Investment Fund recently bought an almost 5 percent stake, and its deep pockets were the reason he tweeted last week that his proposal had “funding secured,” he said.

Tesla fell after a report Wednesday said the SEC sent a subpoena to the electric-car maker regarding Musk’s claims.

While the structure of any investment is unknown, CFIUS has authority in some circumstances to examine foreign investments in US companies even when the buyer isn’t acquiring a majority stake. The new law enacted by Trump Monday broadens the panel’s jurisdiction to examine a wider universe of investments.

The law also establishes mandatory reviews of deals involving "critical technology" when a foreign government has a "substantial interest" in the investor making the acquisition. That provision, which was seen largely directed at China, doesn’t take immediate effect, according to lawyers.

The Saudi fund, which aims to reduce the kingdom’s dependency on oil, disclosed in March that it hired Washington law firm Akin Gump Strauss Hauer & Feld LLP to lobby for approval of acquisitions in the US, with a focus on CFIUS.

‘Open Source’ patents

Any US concerns about transfer of technology to other countries could be mitigated by Musk’s decision to make Tesla’s patents "open source" and available at no charge.

Even before the law passed, a major investment by Saudi Arabia in Tesla would almost certainly have drawn scrutiny, according to lawyers. CFIUS can impose changes to a transaction to protect national security and can recommend that the president block a deal, which Trump has done twice.

“The big question is whether this technology is really sensitive enough and whether if acquired by a non-US company it could have some kind of negative impact on US national security,” said Thad McBride, a lawyer at Bass, Berry & Sims in Washington who works on cross-border deal reviews.

The answer could be yes, since the Trump administration signaled the importance of the US auto industry when it announced possible tariffs on auto imports on the grounds that they could pose a threat to national security, according to McBride.

The Saudi acquisition isn’t the first foreign stake in Tesla. China’s Tencent Holdings Ltd. owns almost 5 percent of the company, according to data compiled by Bloomberg. Tesla Chief Financial Officer Deepak Ahuja told analysts last year the investment didn’t require CFIUS approval.

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