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public shareholders in the restructure and achieving a
windfall profit for themselves, by maintaining in
confidence business information pertinent to the fair
value of the stock...." FMC, 825 F. Supp. at 633 * * *
FMC's claim that Boesky's insider trading caused
the deal to be revised therefore misses the point.
Because FMC's duties included making complete
disclosure and fully compensating its shareholders,
beyond showing that the transaction became more
expensive, FMC must at least show that it paid more for
the stock than it was worth. FMC could not seek the
"minimum premium," but rather was obligated to offer a
"fair" price. Because the shareholders were the
equitable owners of the information, no claim of injury
can lie where premature disclosure of that information
benefitted them in their dealings with the FMC. See
FMC, 825 F. Supp. at 633.
Judge Pollack determined, and we agree, that FMC
presented no evidence that the stock was not worth the
$97 per share price ultimately paid, or that the $85
per share originally contemplated was adequate to
compensate the public shareholders. See id. at 634.
* * * FMC cannot claim that Boesky stole a premium the
company was entitled to, since FMC had no legitimate
interest in realizing a gain at its public
shareholders' expense. Therefore, even if Boesky's
trades caused the stock price to rise prematurely,
because the transaction was approved by both the
shareholders and the board of directors, FMC cannot
claim injury unless it shows, at a minimum, that the
price increase also was artificial. * * *
Moreover, the court concluded that the record was sufficient
to establish that old FMC stock was worth at least $97 at the
time of the recapitalization. The court observed:
That the $97 per share figure was warranted based
on all available information is evident from the fact
that FMC's board of directors voted to increase the
cash payout and to continue to recommend the deal to
the shareholders. See Viacom Int'l Inc. v. Icahn,
946 F.2d 998, 1001 (2d Cir. 1991) (finding directors'
valuation to be relevant in establishing "fair price"
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