martin marietta materials, inc. v. vulcan materials company

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May 9, 2012

Martin Marietta Materials, Inc. v. Vulcan Materials Company Delaware Chancery Court Enjoins Hostile Bid that Used Confidential Information in Breach of Confidentiality Agreements

SUMMARY

In its recent Martin Marietta1 decision, the Delaware Chancery Court enjoined Martin Marietta’s hostile bid

for Vulcan on the basis that Martin Marietta’s use of information it obtained from Vulcan in pursuing its

hostile bid breached its non-disclosure and joint defense agreements with Vulcan. Concluding in large

part that the language of the confidentiality agreements was susceptible to both Martin Marietta’s and

Vulcan’s competing interpretations (although generally favoring Vulcan’s interpretations), Chancellor

Strine relied on extrinsic evidence to find that, despite the absence of an express standstill, the parties

intended the definition of “Transaction” in the main non-disclosure agreement (“a possible business

combination transaction . . . between” the parties or one of their respective subsidiaries) to encompass

only a negotiated transaction between the then-sitting boards of both companies, and that, therefore, both

the confidentiality agreements prohibited the use of “Evaluation Material” for purposes other than such a

consensual transaction.

The Court also found that even if the definition of “Transaction” in the non-disclosure agreement permitted

Martin Marietta to use “Evaluation Material” in considering whether to launch a hostile offer, Martin

Marietta’s disclosure (e.g., in the S-4 and proxy statement) did not fit within the “legally required”

exception to non-disclosure of information pertaining to the “Transaction,” because the obligation arose

out of federal securities laws disclosure requirements applicable to the exchange offer and the proxy

solicitation triggered by Martin Marietta’s self-initiated course of conduct – as opposed to specific external

legal demands such as interrogatories and subpoenas. In so finding, the Court distinguished between

permissible use of “Evaluation Material,” i.e., in determining to launch a hostile bid, and permissible

-2- Martin Marietta Materials, Inc. v. Vulcan Materials Company May 9, 2012

disclosure of “Evaluation Material” in the non-disclosure agreement, making clear that even if the

“Transaction” definition specifically included a hostile bid, the non-disclosure agreement did not permit the

public disclosure of that information. The Court next determined that even if Martin Marietta’s use and

disclosure were “legally required,” and thus permissible, Martin Marietta breached the confidentiality

agreements both because it failed to follow the confidentiality agreements’ notice and vetting procedures

with respect to “Evaluation Material,” and because the scope of its disclosures far exceeded the minimum

that was required by law. Finally, the Court found that even if disclosure was “legally required” in the first

instance, Martin Marietta was not permitted to make subsequent non-required public disclosure of the

already public information unless such disclosure also was “legally required.”

Although the Martin Marietta decision does not break new legal ground, it reinforces the fact that

Delaware will enforce confidentiality agreements as a matter of public policy, and in its detailed textual

analysis of the particular confidentiality agreements at issue and its careful consultation of extrinsic

evidence, the decision serves to focus the M&A community on the potential pitfalls of ambiguous

contractual language in confidentiality agreements, the way in which the parties’ course of conduct can

influence the interpretation of that language, and the difficulty a bidder who has obtained confidential

information faces when its strategy changes from being friendly to being hostile.

TAKEAWAYS

The Martin Marietta decision does not establish new law. However, in its painstaking examination of the

contours of a confidentiality agreement in the M&A context, it does reinforce first principles:

As a matter of public policy, Delaware will enforce confidentiality agreements and generally accept the parties’ assertion contained therein of irreparable harm flowing from breaches, even at the short-term expense of a particular set of shareholders;

Standstills can come in explicit or backdoor forms. While it is better for parties to be explicit if they intend to create a standstill, bidders who refuse to enter into an explicit standstill and their target counterparts should pay particular attention to the definition of “Transaction” and the interplay of that definition with the permissible use and disclosure provisions to avoid a backdoor standstill.

Parties need to make sure that the use and disclosure provisions in a confidentiality agreement work together so that an intended broad use is not unintentionally limited by robust disclosure protections.

A bidder who obtains confidential information pursuant to a confidentiality agreement when it is friendly with the target faces significant problems when its stance becomes hostile if it then uses that information. In the absence of clarity in the confidentiality agreement, background discussions will loom large in the interpretation of the agreement.

The Martin Marietta decision leaves open the question whether a bidder can unilaterally create the legal requirement that compels disclosure under the doctrine that a legal prohibition preventing performance is not a defense if the prohibition arose as a result of the acts of the party asserting the defense, an argument Chancellor Strine said he did not have to address because of his finding that the “legally required” exception to non-disclosure was limited in the non-disclosure agreement to specific external legal demands such as interrogatories and subpoenas.


In the absence of an explicit standstill, a bidder wishing to keep open the option of a possible hostile transaction in the future should consider up-front ways to protect itself against impermissibly using “Evaluation Material,” including by employing clean teams to evaluate whether to effect a hostile bid – a particularly difficult approach where senior management is integral to the transaction strategy.

Parties should be explicit about whether the notice and vetting requirements apply to all “legally required” disclosures or only those specific external legal demands such as interrogatories and subpoenas.

The fact that the confidentiality agreements were governed by Delaware law is not of much import insofar as the decision mainly concerned matters of contractual interpretation, although Delaware’s “contractarian” posture, as Chancellor Strine put it, may have influenced the Court’s readiness to issue the injunction.

BACKGROUND

On December 12, 2011, after approximately 18 months of on-again/off-again friendly discussions about a

possible negotiated combination, Martin Marietta Materials, Inc. (“Martin Marietta”) launched an

unsolicited exchange offer for its competitor, Vulcan Materials Company (“Vulcan”), and shortly thereafter

commenced a proxy contest in which it sought to elect four new members to Vulcan’s board at the

June 1, 2012 annual meeting. The exchange offer was conditioned on, among other things, Vulcan

having entered into a reasonably satisfactory merger agreement with Martin Marietta, a condition that was

waivable by Martin Marietta. It followed Vulcan’s decision to end discussions about a possible stock-for-

stock merger of equals (with a premium) because of a decline in the aggregates market and particularly in

Vulcan’s market value relative to that of Martin Marietta.

Martin Marietta brought suit in Delaware Chancery Court on the day it launched the offer to obtain a

declaration that its exchange offer and proxy contest were not in breach of the Nondisclosure Agreement

it entered into on May 3, 2010 with Vulcan (the “NDA”). Vulcan counterclaimed, seeking a declaration

that Martin Marietta breached the NDA and also a Joint Defense Agreement the parties had entered into

on May 18, 2012 to share antitrust analyses (the “JDA”). Vulcan asserted that, consistent with the NDA’s

irreparable harm/injunctive relief provisions, Martin Marietta should be enjoined for four months — a

period of time extending past Vulcan’s annual meeting — from taking any steps to acquire control of

Vulcan’s shares or assets, including pursuing the exchange offer and the proxy contest.

The NDA (attached as Exhibit A to this Memorandum) contained (i) a requirement to keep confidential

“Evaluation Material” (the provided non-public information and any documents or analyses based

thereon), (ii) a prohibition on using Evaluation Material other than for an evaluation of a “Transaction”

(defined as “a possible business combination transaction . . . between” the two companies or their

subsidiaries), (iii) a prohibition, “[s]ubject to” a separate prior notice and vetting clause and other than as

“legally required,” on disclosing the fact that Evaluation Material had been shared, that the two companies

were in talks with each other “or any of the terms, conditions or other facts with respect thereto” (the


“Transaction Information”), and (iv) a requirement of prior notice and vetting if a party is required “by oral

questions, interrogatories, requests or documents in legal proceedings, subpoena, civil investigative

demand or other similar process” (an “External Demand”) to disclose either “Evaluation Material” or

Transaction Information. The JDA, which covered the sharing of antitrust-related information, contained a

narrower definition of Transaction – one that was “being discussed by” the companies. Neither the NDA

nor the JDA contained an express standstill provision, and Martin Marietta and Vulcan did not at any point

discuss including such a provision in the agreements. By their terms, the NDA’s obligations terminated

after two years, on May 3, 2012; the JDA did not have an express expiration time. Both agreements were

governed by Delaware law.

In the course of the friendly discussions that preceded Martin Marietta’s hostile bid, Vulcan had provided

Martin Marietta’s lawyers with, among other things, nonpublic antitrust analyses about likely divestitures in

the geographic areas where the companies competed. Vulcan also shared with Martin Marietta and its

representatives a host of nonpublic business information, including an analysis about a new software

platform that the Court found Martin Marietta believed could greatly enhance the potential synergies of a

transaction.

To effect its hostile bid, Martin Marietta filed with the SEC a proxy statement and a Form S-4, which

discussed, among other things, the history of its negotiations with Vulcan, estimates of the combined

company’s achievable synergies, and characterizations of the impediments with respect to divestitures

that Vulcan and Martin Marietta expected the combining company would face. Outside of formal SEC

filings, Martin Marietta also disclosed similar information in numerous investor calls and presentations.

On May 4, 2012, the Chancery Court ruled that Martin Marietta had violated the NDA and the JDA and

enjoined Martin Marietta for a period of four months from taking any steps to acquire control of Vulcan’s

shares or assets.

THE CHANCERY COURT’S OPINION

The Court found that Martin Marietta, in launching its exchange offer and proxy contest, used and

disclosed information in breach of the use and non-disclosure restrictions in both the NDA and the JDA,

and therefore granted Vulcan’s demand that Martin Marietta’s hostile bid and proxy contest and any other

steps to acquire control of Vulcan’s shares or assets be enjoined for a period of four months.

A. DIFFICULT TO “UNLEARN” CONFIDENTIAL INFORMATION

The Court found that Martin Marietta’s conduct and internal documents demonstrated that Martin Marietta

relied on nonpublic information provided by Vulcan pursuant to the NDA and JDA in forming its hostile

bid. In support of this conclusion, the Court noted, for example, that shortly after a friendly meeting in

which Vulcan gave nonpublic information to Martin Marietta’s CFO, Martin Marietta raised its synergy


estimates by $100 million annually. The Court observed that even though Martin Marietta, in later forming

its hostile bid, “had its CFO and bankers derive a way of getting to the synergy levels . . . that, at a

technical level, did not involve use” of nonpublic information, the CFO and bankers “were working

backwards from a transaction-motivating level of synergies that had been embraced as achievable”

because those levels were based on nonpublic information provided by Vulcan.2

Similarly, the Court observed that Martin Marietta had used nonpublic information in formulating its

divestiture analysis, notwithstanding that it was possible, in theory, for Martin Marietta to have come up

with an after-the-fact analysis that did not make use of the information. “Once things are learned and

done,” the Court wrote, “it is difficult to unlearn and undo them, especially when the old information is still

being circulated.”3

In addition, the Court noted that Martin Marietta’s use of Vulcan’s nonpublic information was

“unsurprising” given Martin Marietta’s failure to use clean teams — a failure, the Court said, that made

Martin Marietta’s efforts at the time it decided to go hostile to put aside the confidential information it had

learned “awkward and incomplete.”4

B. EXTRINSIC EVIDENCE LEADS TO THE CONCLUSION THAT THE CONFIDENTIALITY AGREEMENT CONTAINED A BACKDOOR STANDSTILL

Having resolved that Martin Marietta had in fact used and disclosed information subject to the NDA and

JDA in forming its hostile bid, the Court turned to interpreting the agreements to decide whether they

barred such a use and disclosure. Unable to conclude that the NDA and JDA unambiguously defined

“Transaction” to include or exclude a hostile bid, Chancellor Strine relied on extrinsic background

evidence to find that, despite the absence of an express standstill, the parties intended that the definition

of “Transaction” in the NDA (“a possible business combination transaction . . . between” the parties)

encompass only a negotiated transaction between the then-sitting boards of both companies, and that the

NDA and JDA prohibited the use of Evaluation Material covered by them for purposes other than such a

consensual transaction.

Examining the NDA first, the Court rejected any single interpretation of “business combination,” including

a narrow one based on Section 203 of the Delaware Code (which the Court noted purposely excludes

friendly transactions), a broad one based on Rule 165 under the Securities Act of 1933 (which the Court

noted would include, even on a standalone basis, an exchange offer for 20% of a company’s shares and

exclude all-cash mergers), and one that M&A practitioners often seemed to favor — using “business

combination” to capture “all of the various transactional routes that might be taken or ultimately lead to a

combination or integration of all or some of the assets of two companies.”5 The Court also rejected that

the word “between” used in the definition of “Transaction” unequivocally established that a Transaction

was limited to a consensual board-approved transaction (as Vulcan argued) or encompassed a

transaction that ultimately was between the two companies but involved multiple steps (as Martin Marietta


argued, citing to the condition in its hostile offer requiring an ultimate merger between the companies).6

While the Court leaned towards an interpretation of “Transaction” that was limited to a friendly one

(curiously observing that the NDA’s use of standard language providing that the agreement creates no

legal obligation to effect a transaction “unless and until a definitive agreement between the parties with

respect to a Transaction” has been executed lent support to the interpretation), it concluded that the term

was sufficiently susceptible to multiple interpretations as to require a review of extrinsic evidence.

In reviewing the extrinsic evidence, the Court found that (i) the history of the discussions between the

parties showed that Martin Marietta’s CEO was fixated on ensuring that there would not be a hostile bid

against Martin Marietta, and that his general counsel was aware of that concern,7 (ii) Martin Marietta’s

lawyer’s editing of the phrase “a transaction involving the parties” (taken from a prior agreement between

the parties for a different type of transaction) to read “a business combination transaction . . . between”

the parties, especially against the backdrop of the well-publicized 2009 Certicom8 decision (in which a

Canadian court narrowly interpreted the word “between” in the definition of “transaction”), demonstrated

that she intended a narrow definition of “Transaction,” and (iii) Martin Marietta’s actions after deciding to

pursue a hostile bid, including a “clunky attempt”9 to gather up nonpublic Vulcan information and put them

in a sealed box, suggested that even Martin Marietta thought the use of the information in connection with

hostile activity was not permitted under the NDA.

Examining the JDA, which defined Transaction as the one “being discussed” – language Martin Marietta

added –, and finding that the only transaction being discussed at the time the JDA was executed was a

negotiated one, the Court also concluded that the JDA did not permit the use of Vulcan’s confidential

antitrust information or analyses in forming a hostile bid.

Taking into account the “interpretive gloss” provided by the JDA (since the parties agreed that the NDA

and the JDA were interrelated), the drafting history of the NDA, and Martin Marietta’s conduct, the Court

concluded that (i) the definition of “Transaction” in both agreements was confined to “any step or related

series of steps leading to a formal mingling of the two companies’ assets that is contractually agreed

upon or consented to, by the sitting boards of both companies at the outset of those steps being taken,”10

and (ii) that neither the exchange offer nor the proxy contest qualified as a “Transaction.” As a result,

under the plain reading of the NDA and the JDA, the Court found that Martin Marietta breached the NDA

and JDA by using Vulcan’s confidential information in furtherance of its exchange offer and proxy

solicitation.

C. “LEGALLY REQUIRED” EXCEPTION DID NOT PERMIT MARTIN MARIETTA’S PUBLIC DISCLOSURE OF CONFIDENTIAL INFORMATION

The Court next decided, again by turning to extrinsic evidence, that even if Martin Marietta was free to

use the Evaluation Material in considering whether to launch a hostile offer, Martin Marietta’s disclosure

(e.g., in the S-4 and proxy statement sent to shareholders) did not fit within the “legally required”


exception to non-disclosure of Transaction Information, because the obligation (arose out of federal

securities laws disclosure requirements applicable to the exchange offer and the proxy solicitation

triggered by Martin Marietta’s self-initiated course of conduct — as opposed to specific external legal

demands such as interrogatories and subpoenas. Because the Court concluded that it could reach its

decision through a narrow contractual interpretation of the “legally required” exception to the non-

disclosure prohibition, it never reached the issue of whether Martin Marietta was precluded from pursuing

a unilateral course of conduct that would permit it to disclose confidential information in contravention of

its overriding obligation to keep Evaluation Material and Transaction Information confidential under the

doctrine that a legal prohibition preventing performance is not a defense if the prohibition arose as a

result of the acts of the party asserting the defense.11

Once again, through an exacting review of the language of the NDA, the Court concluded that the NDA

was ambiguous with respect to whether the “legally required” exception to the prohibition on disclosing

Transaction Information (contained in paragraph 3 of the NDA) (i) was confined to the limited enumerated

legal requirements comprising External Demands set forth in paragraph 4 of the NDA, and thereby

subject to its prior notice and vetting requirements, especially in light of the explicit “[s]ubject to paragraph

(4)” language contained in paragraph 3 of the NDA (as Vulcan contended) or (ii) was a legal requirement

separate from External Demands and therefore included, among other things, SEC-imposed

requirements that flowed from self-orchestrated actions, like launching an exchange offer, in which case

the notice and vetting provisions of paragraph 4 of the NDA would not obtain absent an External Demand

(as Martin Marietta contended).

The Court noted that Martin Marietta’s interpretation was strained insofar as it created the inapposite

result that notice and vetting would be dependent on the form of the legal requirement and therefore,

somewhat counterintuitively, there would be more robust notice and vetting requirements generated by

External Demands than those generated by legal requirements arising from self-initiated action.

Moreover, the Court found problematic the notion that, because the NDA’s paragraph governing non-

disclosure of Evaluation Material contained no “legally required” exception, a dual legal requirement

regime would subject disclosure of Transaction Information to a different regime than that applicable to

Evaluation Material, rejecting Martin Marietta’s attempt to address the issue by characterizing Evaluation

Material as Transaction Information through the “facts with respect [to]” language in paragraph 3 of the

NDA. However, the Court acknowledged that Martin Marietta’s position that a broader legal requirement

obtained with respect to Transaction Information than with respect to triggering the notice and vetting

requirements of paragraph 4 was still plausible, since Vulcan’s interpretation of one unified legal

requirement definition for the entire NDA obviated the need for a “legally required” exception in paragraph

3. Having again found ambiguity in the NDA, the Court turned again to extrinsic evidence to conclude

that Martin Marietta impermissibly disclosed confidential information.


Finding that there is no default rule in the treatises as to whether permitted disclosures for Transaction

Information and Evaluation Material are co-extensive, that Martin Marietta’s edits added the explicit

“[s]ubject to paragraph 4” qualifier into the non-disclosure of Transaction Information of paragraph 3 of the

NDA, and that Martin Marietta’s CEO was adamant that maximum confidentiality be observed when the

parties entered into the NDA, the Court stated “[t]he notion that [the CEO’s] obsessive concern with

confidentiality did not extend to a situation when Vulcan itself would decide to launch a hostile bid, impose

on itself an arguable legal requirement to disclose, and use that as a blank check to dump in the public

domain the broad classes of information that Martin Marietta had itself asked to be treated as confidential

under the NDA is one that a rational, disinterested mind could not accept as plausible.”12 Having found

that the “legally required” exception in the non-disclosure of Transaction Information of paragraph 3 of the

NDA was governed by the narrow definition of External Demand in paragraph 4 of the NDA, the Court

concluded that there was no showing that the disclosure required by federal securities laws fell within the

meaning of an External Demand and that therefore Martin Marietta breached the NDA when it filed its

S-4. Moreover, the Court observed that even if one construed SEC comment letters to a preliminary S-4

as constituting an External Demand (which Martin Marietta did not do), Martin Marietta breached the NDA

by failing to adhere to the notice and vetting requirements that thereby would be required by paragraph 4

of the NDA.

D. MARTIN MARIETTA BREACHED THE NDA BY FAILING TO FOLLOW THE NOTICE AND VETTING REQUIREMENTS FOR DISCLOSURE OF EVALUATION MATERIAL

The Court next decided that even if it adopted Martin Marietta’s broad view of the “legally required”

exception to non-disclosure of Transaction Information in paragraph 3 of the NDA, Martin Marietta would

still have breached the NDA in failing to follow the notice and vetting provisions of paragraph 4 of the

NDA with respect to Evaluation Material in the absence of an External Demand. As previously discussed,

the Court found unpersuasive Martin Marietta’s argument that Evaluation Material constituted “facts with

respect [to]” Transaction Information and therefore should be treated in the same way as Transaction

Information, noting that the non-disclosure provisions could thereby easily be gutted, and that under

common usage, including in model agreements, Evaluation Materials do not somehow get “imported” into

Transaction Information. The Court found that, since Evaluation Material was not Transaction

Information, Martin Marietta could only disclose Evaluation Material if it was legally required to do so

under an External Demand and in such a case the notice and vetting procedures of paragraph 4 that

Martin Marietta had not observed were applicable. For similar reasons, the Court also found that Martin

Marietta breached the notice and vetting requirements of the JDA.

E. MARTIN MARIETTA’S SELECTIVE AND BROAD PUBLIC DISCLOSURE FAR EXCEEDED ANY LEGAL REQUIREMENT

The Court next addressed the fact that even if the Evaluation Materials could be “imported” into

Transaction Information and that disclosure of that information was “legally required,” the extent of Martin


Marietta’s disclosure in its S-4, proxy statement and public pronouncements far exceeded the

requirements imposed by the proxy rules and Regulation M-A. Endorsing Vulcan’s view that Martin

Marietta should have started with bare-bones disclosure and waited to see if the SEC required more, the

Court admonished Martin Marietta for its extensive and selective disclosure devised by outside public

relations “flacks” that was influenced by strategic considerations aimed at prevailing in a hostile bid for

Vulcan. Among other things, the Court pointed to the fact that nothing in the applicable legal

requirements required Martin Marietta to disclose Vulcan’s opinions regarding antitrust risks or Vulcan’s

views as to the amount of synergies that could be achieved by a combination of the companies. In

Chancellor Strine’s view, the NDA placed the burden on the disclosing party to show that each precise

disclosure was “legally required,” and Martin Marietta failed to meet that burden. Similarly, the Court

rejected Martin Marietta’s contention that once it made public disclosure that was “legally required” to be

made, it was then free to use the same information in any other form or forum in pursuit of its hostile bid,

even though the information being disclosed was already in the public arena. Noting that the NDA

specifically limited disclosures to those “legally required” (assuming that any disclosure was legally

permissible), the Court concluded that each non-“legally required” disclosure constituted an independent

violation of the NDA.

F. INJUNCTION IS A CONTRACTUALLY MANDATED AND REASONABLE REMEDY

In light of Martin Marietta’s numerous breaches of the NDA and the JDA, the Court granted the relief

sought by Vulcan and enjoined Martin Marietta from pursuing any steps to acquire control of Vulcan’s

shares or assets for a period of four months. Observing that in Delaware parties can contractually agree

as to the elements of a compulsory remedy, and that the existence of such a clause is typically sufficient

to establish irreparable harm, that the NDA and JDA each contained an express provision that their

breach would result in irreparable harm, and that Martin Marietta itself had been motivated to enter the

NDA by a desire to avoid an unsolicited offer for itself, the Court had little trouble finding the element of

irreparable harm required for injunctive relief. As for the question of whether the balance of hardships

favored an injunction, the Court determined that investors overall would be better served by the

enforcement of the NDA and the JDA than by giving Vulcan shareholders access to a purported premium

on their shares by way of Martin Marietta’s exchange offer. Distinguishing the case from one in which a

board of directors is faced with a fiduciary duty claim requiring it to waive contractual rights, which would

be the subject of a fiduciary duty action in New Jersey where Vulcan is incorporated, the Court found that

Vulcan’s requested four-month injunction that would preclude Martin Marietta from running its slate at the

Vulcan annual meeting in June, 2012, was reasonable relief.

G. A CODA

In a section in the opinion titled “A Coda on The Value of Confidentiality Agreements to M&A Activity,”

Chancellor Strine emphasized the importance of careful but strict enforcement of confidentiality


agreements. Noting that the market and investors benefit from the enforcement of confidentiality

agreements, because confidentiality agreements facilitate protected discussion among competitors that

lead to healthy premium mergers, Chancellor Strine admonished parties who enter into confidentiality

agreements to be clear about their terms.

* * *

Copyright © Sullivan & Cromwell LLP 2012


ENDNOTES

1 Martin Marietta Materials, Inc. v. Vulcan Materials Co., C.A. no. 7102-CS (Del. Ch. May 4, 2012). Sullivan & Cromwell LLP represented Vulcan’s advisor Goldman, Sachs & Co. in connection with a third-party subpoena served by Martin Marietta during the litigation.

2 Id., slip op. at 44. 3 Id. at 46. 4 Id. at 47. 5 Id. at 68. 6 The Court noted that even the treatises and models did not uniformly suggest that “between” was

a safe way for parties to limit the usage of information to “negotiated” transactions. If Vulcan wanted “between” to mean what it said it did, the Court noted that it could have included modifiers such as “negotiated” or “mutually agreeable.” In addition, the Court discounted Martin Marietta’s interpretation based on its merger condition in light of its right to waive that condition.

7 Interestingly, the Court does not explain why Martin Marietta did not raise or discuss entering into a standstill if it was determined to avoid being acquired.

8 Certicom Corp. v. Research in Motion Ltd (2009) 94 O.R. 3d 511 (Can. Ont. Sup. Ct. J.). 9 Martin Marietta Materials, Inc., supra note 1, slip op. at 84. 10 Id. at 88. 11 See Martin Marietta Materials, Inc., supra note 1, slip op. at 115, n. 241. 12 Martin Marietta Materials, Inc., supra note 1, slip op. at 106.


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-13- Martin Marietta Materials, Inc. v. Vulcan Materials Company May 9, 2012 SC1:3243420v1

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EXHIBIT A

martin marietta materials, inc. v. vulcan materials company

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