Martin Marietta Materials, Inc. to Appeal Delaware Court of Chancery Ruling
May 07 2012 - 8:00AM
Business Wire
Martin Marietta Materials, Inc. (NYSE: MLM) today announced that
it has determined to pursue an appeal of the ruling announced by
the Delaware Court of Chancery in the litigation related to Martin
Marietta’s proposed business combination with Vulcan Materials
Company (NYSE: VMC).
The Company today issued the following statement:
“Martin Marietta continues to believe in the undeniable
strategic merits of a business combination with Vulcan. We are
disappointed with the decision rendered by the Delaware Court of
Chancery, with which we strongly disagree. After carefully
considering our options, Martin Marietta has determined to pursue
an appeal and to seek a stay of the Court’s ruling pending the
outcome of the appeal.
“If we are successful in the appeal process, we expect that the
independent candidates nominated by Martin Marietta will stand for
election at the Vulcan annual meeting and that we will continue to
pursue our exchange offer for Vulcan shares.
“If we are not successful in the appeal process, we may be
required by the terms of the Delaware order to suspend our
activities with respect to the proposed business combination with
Vulcan for four months, including pursuing the election of our four
independent nominees to the Vulcan board and our exchange
offer.
“We presently intend to continue our efforts to combine with
Vulcan, including pursuing our exchange offer, as soon as we are
permitted to do so. We will, of course, make decisions as to how to
proceed based on relevant circumstances.”
Cautionary Note Regarding
Forward-Looking Statements
This press release may include “forward-looking statements.”
Statements that include words such as “anticipate,” “expect,”
“should be,” “believe,” “will,” and other words of similar meaning
in connection with future events or future operating or financial
performance are often used to identify forward-looking statements.
All statements in this press release, other than those relating to
historical information or current conditions, are forward-looking
statements. These forward-looking statements are subject to a
number of risks and uncertainties, many of which are beyond Martin
Marietta’s control, which could cause actual results to differ
materially from such statements. Risks and uncertainties relating
to the proposed transaction with Vulcan include, but are not
limited to: Vulcan’s willingness to accept Martin Marietta’s
proposal and enter into a definitive transaction agreement
reasonably satisfactory to the parties; Martin Marietta’s ability
to obtain shareholder, antitrust and other approvals on the
proposed terms and schedule; uncertainty as to the actual premium
that will be realized by Vulcan shareholders in connection with the
proposed transaction; uncertainty of the expected financial
performance of the combined company following completion of the
proposed transaction; Martin Marietta’s ability to achieve the
cost-savings and synergies contemplated by the proposed transaction
within the expected time frame; Martin Marietta’s ability to
promptly and effectively integrate the businesses of Vulcan and
Martin Marietta; the combined company’s ability to pay dividends in
the amounts anticipated; a downgrade of the credit rating of
Vulcan’s indebtedness, which could give rise to an obligation to
redeem Vulcan’s existing indebtedness; the potential implications
of alternative transaction structures with respect to Vulcan,
Martin Marietta and/or the combined company, including potentially
requiring an offer to repurchase certain of Martin Marietta’s
existing debt; the implications of the proposed transaction on
certain of Martin Marietta’s and Vulcan’s employee benefit plans;
and disruption from the proposed transaction making it more
difficult to maintain relationships with customers, employees or
suppliers. Additional risks and uncertainties include, but are not
limited to: the performance of the United States economy; decline
in aggregates pricing; the inability of the U.S. Congress to pass a
successor federal highway bill; the discontinuance of the federal
gasoline tax or other revenue related to infrastructure
construction; the level and timing of federal and state
transportation funding, including federal stimulus projects; the
ability of states and/or other entities to finance approved
projects either with tax revenues or alternative financing
structures; levels of construction spending in the markets that
Martin Marietta and Vulcan serve; a decline in the commercial
component of the nonresidential construction market, notably office
and retail space; a slowdown in residential construction recovery;
unfavorable weather conditions, particularly Atlantic Ocean
hurricane activity, the late start to spring or the early onset of
winter and the impact of a drought or excessive rainfall in the
markets served by Martin Marietta and Vulcan; the volatility of
fuel costs, particularly diesel fuel, and the impact on the cost of
other consumables, namely steel, explosives, tires and conveyor
belts; continued increases in the cost of other repair and supply
parts; transportation availability, notably barge availability on
the Mississippi River system and the availability of railcars and
locomotive power to move trains to supply Martin Marietta’s and
Vulcan’s long haul distribution markets; increased transportation
costs, including increases from higher passed-through energy and
other costs to comply with tightening regulations as well as higher
volumes of rail and water shipments; availability and cost of
construction equipment in the United States; weakening in the steel
industry markets served by Martin Marietta’s dolomitic lime
products; inflation and its effect on both production and interest
costs; Martin Marietta’s ability to successfully integrate
acquisitions and business combinations quickly and in a
cost-effective manner and achieve anticipated profitability to
maintain compliance with Martin Marietta’s leverage ratio debt
covenants; changes in tax laws, the interpretation of such laws
and/or administrative practices that would increase Martin
Marietta’s and/or Vulcan’s tax rate; violation of Martin Marietta’s
debt covenant if price and/or volumes return to previous levels of
instability; a potential downgrade in the rating of Martin
Marietta’s or Vulcan’s indebtedness; downward pressure on Martin
Marietta’s or Vulcan’s common stock price and its impact on
goodwill impairment evaluations; the highly competitive nature of
the construction materials industry; the impact of future
regulatory or legislative actions; the outcome of pending legal
proceedings; healthcare costs; the amount of long-term debt and
interest expense; changes in interest rates; volatility in pension
plan asset values which may require cash contributions to pension
plans; the impact of environmental clean-up costs and liabilities
relating to previously divested businesses; the ability to secure
and permit aggregates reserves in strategically located areas;
exposure to residential construction markets; and the impact on the
combined company (after giving effect to the proposed transaction
with Vulcan) of any of the foregoing risks, as well as other risk
factors listed from time to time in Martin Marietta’s and Vulcan’s
filings with the SEC.
The foregoing review of important factors should not be
construed as exhaustive and should be read in conjunction with the
other cautionary statements that are included elsewhere, including
the Risk Factors section of the Registration Statement and our most
recent report on Form 10-K, and any other documents of Martin
Marietta and Vulcan filed with the SEC. Any forward-looking
statements made in this press release are qualified in their
entirety by these cautionary statements, and there can be no
assurance that the actual results or developments anticipated by us
will be realized or, even if substantially realized, that they will
have the expected consequences to, or effects on, us or our
business or operations. Except to the extent required by applicable
law, we undertake no obligation to update publicly or revise any
forward-looking statement, whether as a result of new information,
future developments or otherwise.
Important Additional
Information
This press release relates to the Exchange Offer by Martin
Marietta to exchange each issued and outstanding share of common
stock of Vulcan for 0.50 shares of Martin Marietta common stock.
This press release is for informational purposes only and does not
constitute an offer to exchange, or a solicitation of an offer to
exchange, shares of Vulcan common stock, nor is it a substitute for
the Tender Offer Statement on Schedule TO or the preliminary
prospectus/offer to exchange included in the Registration Statement
on Form S-4 (the “Registration Statement”) (including the letter of
transmittal and related documents and as amended and supplemented
from time to time, the “Exchange Offer Documents”) initially filed
by Martin Marietta on December 12, 2011 with the SEC. The
Registration Statement has not yet become effective. The Exchange
Offer will be made only through the Exchange Offer Documents.
INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE EXCHANGE OFFER
DOCUMENTS AND ALL OTHER RELEVANT DOCUMENTS THAT MARTIN MARIETTA HAS
FILED OR MAY FILE WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE
THEY CONTAIN OR WILL CONTAIN IMPORTANT INFORMATION.
In connection with the solicitation of proxies for Vulcan’s 2012
annual meeting of shareholders (the “Vulcan Meeting”), Martin
Marietta filed a definitive proxy statement on April 25, 2012 (as
supplemented, the “Vulcan Meeting Definitive Proxy Statement”) with
the SEC. The Vulcan Meeting Definitive Proxy Statement and
accompanying proxy card will be mailed to the shareholders of
Vulcan. Martin Marietta also intends to file a proxy statement on
Schedule 14A and other relevant documents with the SEC in
connection with its solicitation of proxies for a meeting of Martin
Marietta shareholders (the “Martin Marietta Meeting”) to approve,
among other things, the issuance of shares of Martin Marietta
common stock pursuant to the Exchange Offer (the “Martin Marietta
Meeting Proxy Statement”). INVESTORS AND SECURITY HOLDERS ARE URGED
TO READ THE VULCAN MEETING DEFINITIVE PROXY STATEMENT, THE MARTIN
MARIETTA MEETING PROXY STATEMENT AND OTHER RELEVANT MATERIALS AS
THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION.
All documents referred to above, if filed, will be available
free of charge at the SEC’s website (www.sec.gov) or by directing a
request to Morrow & Co., LLC at (877) 757-5404 (banks and
brokers may call (203) 658-9400).
Martin Marietta, its directors and executive officers and the
individuals nominated by Martin Marietta for election to Vulcan’s
Board of Directors are participants in any solicitation of proxies
from Vulcan shareholders for the Vulcan Meeting or any adjournment
or postponement thereof. Martin Marietta, its directors and
executive officers are participants in any solicitation of proxies
from Martin Marietta shareholders for the Martin Marietta Meeting
or any adjournment or postponement thereof. Information about the
participants, including a description of their direct and indirect
interests, by security holdings or otherwise, is available in the
Registration Statement, the proxy statement for Martin Marietta’s
2012 annual meeting of shareholders, filed with the SEC on April
18, 2012, and the Vulcan Meeting Definitive Proxy Statement, or
will be available in the Martin Marietta Meeting Proxy Statement,
as applicable.
About Martin Marietta
Martin Marietta Materials, Inc. is the nation’s second largest
producer of construction aggregates and a producer of
magnesia-based chemicals and dolomitic lime. For more information
about Martin Marietta Materials, Inc., refer to the Corporation’s
website at www.martinmarietta.com.
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