BIRMINGHAM, Ala., May 14, 2012 /PRNewswire/ -- Vulcan Materials
Company (NYSE:VMC) announced that the Delaware Court of Chancery today issued its
order and judgment implementing its earlier ruling enjoining Martin
Marietta Materials (NYSE: MLM) and also denied Martin Marietta's motion for a stay pending
appeal.
Wachtell, Lipton, Rosen & Katz is acting as legal advisor to
Vulcan. Goldman, Sachs & Co. and BofA Merrill Lynch are
acting as financial advisors to Vulcan.
The text of the Court of Chancery's Final Order and Judgment is
as follows:
"The Court, having conducted a trial in this matter on
February 28, 2012 through
March 2, 2012, and having issued its
post-trial Opinion on May 4, 2012
(the "Opinion"), hereby enters final judgment as follows, for the
reasons stated in the Opinion:
1. "Counts I and
II of the Complaint of plaintiff Martin Marietta Materials, Inc.
("Martin Marietta") are hereby
dismissed with prejudice and Count III of the Complaint is hereby
dismissed without prejudice as moot;
2. "Judgment is
granted on all Amended Counterclaims of Vulcan Materials Company
("Vulcan") enjoining Martin
Marietta, its officers, agents, servants, employees, and
attorneys, and those persons in active concert or participation
with them who receive actual notice of this Order by personal
service or otherwise, for a period of four months commencing on the
date of this Order from any of the following:
a. "prosecuting
a proxy contest, making an exchange offer or tender offer, or
otherwise taking steps to acquire control of Vulcan shares or
assets, including, without limitation, (i) making, maintaining, or
amending any regulatory filings to facilitate any of the foregoing,
(ii) making any communications, including with regulatory agencies,
Vulcan shareholders or other third parties, to facilitate any of
the foregoing, (iii) taking any steps to influence the vote on
directors at the 2012 Vulcan Annual Meeting or (iv) otherwise
acting to facilitate or in furtherance of any of the foregoing;
and
b. "taking any
actions in violation of the May 3,
2010 letter agreement between Martin
Marietta and Vulcan ("the NDA") or the May 18, 2010 Common Interest, Joint Defense &
Confidentiality Agreement between Martin
Marietta and Vulcan ("the JDA"), with Martin Marietta's obligations under the NDA and
JDA remaining in effect throughout the four- month period of said
injunction (without reducing any term of the JDA).
3. "Without
limiting any of the foregoing relief, and in connection with and to
effectuate such relief, Martin
Marietta, immediately upon entry of this Judgment, shall (a)
terminate and withdraw its pending exchange offer and proxy
materials and all regulatory filings (including Hart-Scott Rodino
Act filings) made in connection therewith and (b) terminate and
withdraw its notices of nomination and proposal of nominees to
stand for election to the Vulcan Board of Directors."
The text of the Court of Chancery's Order denying Martin Marietta's motion for a stay pending
appeal is as follows:
"The Court, having reviewed Martin Marietta Materials Inc.'s
Motion to Stay Pending Appeal ("Motion") and the opposition
thereto, and having conducted a teleconference on May 14, 2012 on the Motion, for the reasons
stated on the record during the teleconference, hereby DENIES the
Motion."
About Vulcan Materials Company
Vulcan Materials Company, a member of the S&P 500 index, is
the nation's largest producer of construction aggregates, a major
producer of asphalt mix and concrete and a leading producer of
cement in Florida.
ADDITIONAL INFORMATION
This document does not constitute an offer to buy or
solicitation of an offer to sell any securities or a solicitation
of any vote, consent or approval. In response to the
unsolicited exchange offer commenced by Martin Marietta Materials,
Inc., a North Carolina corporation
("Martin Marietta"), Vulcan
Materials Company ("Vulcan") has filed a
Solicitation/Recommendation statement on Schedule 14D-9 with the
U.S. Securities and Exchange Commission ("SEC"). INVESTORS
AND SECURITY HOLDERS OF VULCAN ARE URGED TO READ THE SOLICITATION /
RECOMMENDATION STATEMENT AND OTHER DOCUMENTS FILED WITH THE SEC
CAREFULLY IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT
INFORMATION. Investors and security holders may obtain free
copies of these documents and other documents filed with the SEC by
Vulcan through the website maintained by the SEC at
http://www.sec.gov. Copies of the Solicitation/Recommendation
Statement, any amendments and supplements to the
Solicitation/Recommendation Statement and other Vulcan materials
related to Martin Marietta's
unsolicited offer will also be available for free under the
"Investor Relations" tab of Vulcan's corporate website
http://www.vulcanmaterials.com.
ADDITIONAL INFORMATION ABOUT POTENTIAL PARTICIPANTS
In addition, Vulcan has filed a definitive proxy statement and a
WHITE proxy card with the SEC with respect to the 2012 Annual
Meeting of Shareholders. The definitive proxy statement and
WHITE proxy card has been mailed to shareholders of Vulcan. Vulcan,
its directors and certain of its executive officers may be deemed
to be participants in the solicitation of proxies from Vulcan
shareholders in connection with the matters to be considered at the
annual meeting. INVESTORS AND SECURITY HOLDERS OF VULCAN ARE URGED
TO READ THE DEFINITIVE PROXY STATEMENT, ACCOMPANYING WHITE PROXY
CARD AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR
ENTIRETY AS THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN
IMPORTANT INFORMATION. Investors and security holders will be
able to obtain free copies of these documents (when available) and
other documents filed with the SEC by Vulcan through the website
maintained by the SEC at http://www.sec.gov.
Detailed information regarding the identity of potential
participants, and their direct or indirect interests, by security
holdings or otherwise, is set forth in the definitive proxy
statement and other materials filed with the SEC in connection with
Vulcan's 2012 Annual Meeting. Information regarding the
direct and indirect beneficial ownership of Vulcan's directors and
executive officers in Vulcan's securities is included in their SEC
filings on Forms 3, 4 and 5, and additional information can also be
found in Vulcan's Annual Report on Form 10-K for the year ended
December 31, 2011, filed with the SEC
on February 29, 2012, and its
Quarterly Report on Form 10-Q for the first quarter ended
March 31, 2012, filed on May 2, 2012. Relevant information
concerning such participants and their potential interests is also
contained in the Solicitation/Recommendation on Schedule
14D-9. Shareholders will be able to obtain any proxy
statement, any amendments or supplements to the proxy statement and
other documents filed by Vulcan with the SEC for no charge at the
SEC's website at www.sec.gov. Copies will also be available at no
charge under the "Investor Relations" tab of our corporate website
at www.vulcanmaterials.com.
FORWARD-LOOKING STATEMENT DISCLAIMER
This document contains forward-looking statements.
Statements that are not historical fact, including statements about
Vulcan's beliefs and expectations, are forward-looking
statements. Generally, these statements relate to future
financial performance, results of operations, business plans or
strategies, projected or anticipated revenues, expenses, earnings
(including EBITDA and other measures), dividend policy, shipment
volumes, pricing, levels of capital expenditures, intended cost
reductions and cost savings, anticipated profit improvements and/or
planned divestitures and asset sales. These forward-looking
statements are sometimes identified by the use of terms and phrases
such as "believe," "should," "would," "expect," "project,"
"estimate," "anticipate," "intend," "plan," "will," "can," "may" or
similar expressions elsewhere in this document. These
statements are subject to numerous risks, uncertainties, and
assumptions, including but not limited to general business
conditions, competitive factors, pricing, energy costs, and other
risks and uncertainties discussed in the reports Vulcan
periodically files with the SEC.
Forward-looking statements are not guarantees of future
performance and actual results, developments, and business
decisions may vary significantly from those expressed in or implied
by the forward-looking statements. The following risks related to
Vulcan's business, among others, could cause actual results to
differ materially from those described in the forward-looking
statements: risks that Vulcan's intentions, plans and results with
respect to cost reductions, profit enhancements and asset sales, as
well as streamlining and other strategic actions adopted by Vulcan,
will not be able to be realized to the desired degree or within the
desired time period and that the results thereof will differ from
those anticipated or desired; uncertainties as to the timing and
valuations that may be realized or attainable with respect to
intended asset sales; future events relating to Martin Marietta's unsolicited offer to acquire
Vulcan; those associated with general economic and business
conditions; the timing and amount of federal, state and local
funding for infrastructure; the lack of a multi-year federal
highway funding bill with an automatic funding mechanism; the
reluctance of state departments of transportation to undertake
federal highway projects without a reliable method of federal
funding; the impact of a prolonged economic recession on Vulcan's
industry, business and financial condition and access to capital
markets; changes in the level of spending for private residential
and nonresidential construction; the highly competitive nature of
the construction materials industry; the impact of future
regulatory or legislative actions; the outcome of pending legal
proceedings; pricing of Vulcan's products; incurred and potential
costs associated with Martin
Marietta's unsolicited takeover attempt and proxy
contest; weather and other natural phenomena; energy costs; costs
of hydrocarbon-based raw materials; healthcare costs; the amount of
long-term debt and interest expense incurred by Vulcan; changes in
interest rates; the impact of Vulcan's below investment grade debt
rating on Vulcan's cost of capital; volatility in pension plan
asset values which may require cash contributions to the pension
plans; the impact of environmental clean-up costs and other
liabilities relating to previously divested businesses; Vulcan's
ability to secure and permit aggregates reserves in strategically
located areas; Vulcan's ability to manage and successfully
integrate acquisitions; the potential of goodwill impairment; the
potential impact of future legislation or regulations relating to
climate change or greenhouse gas emissions or the definition of
minerals; and other assumptions, risks and uncertainties detailed
from time to time in the reports filed by Vulcan with the SEC. All
forward-looking statements in this communication are qualified in
their entirety by this cautionary statement. Vulcan disclaims
and does not undertake any obligation to update or revise any
forward-looking statement in this document except as required by
law. Vulcan notes that forward-looking statements made in
connection with a tender offer are not subject to the safe harbors
created by the Private Securities Litigation Reform Act of
1995. Vulcan is not waiving any other defenses that may be
available under applicable law.
SOURCE Vulcan Materials Company