Blow of the National audience to FFC. The court has annulled the price of 6 euros set by the construction company controlled by Mexican billionaire Carlos Slim and approved by the National Securities Market Commission (CNMV) for the exclusion bid that it launched in 2016 on its subsidiary Cementos Portland and has urged the supervisor The stock market has increased it to 10.29 euros per share, according to a ruling issued today by the firm Cremades & Calvo Sotelo.
In December 2016, the CNMV authorized FCC's takeover bid on its Portland subsidiary, which then controlled 77.93% of its share capital following the offer that Slim launched to take control of the construction company. The CNMV authorized the takeover in the terms offered by FCC, 6 euros per share. The price was set after Banco Santander, the independent adviser chosen to comply with the FCC's fixing procedure, determined that the fair price of the bid should be between 4.95 and 5.50 euros per share, which 6 euros set by the builder were fair.
After fixing the price, some minority shareholders they presented a Appeal at the Hearing by understanding that such price was not fair. The judges have estimated such a claim on having understood that "it is not justified why the CNMV did not demand the use of the equitable price valuation method through the theoretical book value, used other times and always considered adequate by the CNMV". The plaintiffs, on the other hand, did take into account the theoretical book value, which had been used by the auditor in the annual accounts, and which was 10.29 euros.
The magistrates have also detected a conflict of interests given that Santander was not only responsible for carrying out the valuation, but also, was the global agent of the financing of FCC, guarantor of the OPA and intermediary and liquidator, for which "it is reasonable" that he had special interest in that the period was as low as possible. Although the law does not prohibit the provision of services when there is a conflict of interest, "when that conflict exists and it is demonstrated that the action carried out by the service provider discussed and debatable," it is necessary to invalidate, "for lack of objectivity and equity ", the flawed performance. And that is what the CNMV should have done at the time, according to the Audiencia.
From Cremades & Calvo Sotelo they value the "important judicial control" and the "discipline" that this judgment represents, which is appealable in cassation before the Supreme Court. Sources of the CNMV have confirmed to Efe that they will appeal the sentence.