UNITED STATES DISTRICT COURT mm pee v» FOR THE NORTHERN DISTRICT OF ALABAMA eee SOUTHERN DIVISION “i VULCAN MATERIALS COMPANY, ) ) Plaintiff, ) v t CIVIL ACTION NUMBER: ) MARTIN MARIETTA MATERIALS, ) INC, ) vent-t0-e2t0-8 ) Defendant. ) COMPLAINT Plaintiff Vulcan Materials Company (“"Vulcan” or the “Company”) by its undersigned counsel alleges, upon knowledge as to itself and its own acts and upon information and belief as to all other matters, as follows against Martin Marietta Materials, Inc. (“Martin Marietta”): INTRODUCTION 1. This action arises out of Martin Marietta’s illegal scheme to pursue a hostile takeover of Vulean through the unlawful use of Vulean’s confidential in- formation, This information consists of nonpublic, highly valuable, commercially sensitive data about Vulcan’s business operations and plans, including the privi- leged and confidential opinions of Vulean’s attorneys, shared with Martin Marietta pursuant to the parties’ joint defense and common interest agreement. Martin Ma- rietta has used this information in clear violation of contractual promises it made to‘Vulcan in May 2010 when the two companies began to explore a negotiated, con- sensual merger transaction, In the period since, Martin Marietta collected informa- tion from Vulcan under the false pretense that it would respect its contractual un- dertakings, and then surreptitiously violated those same contractual undertakings by misusing Vulcan's confidential information and joint defense confidence in the preparation of its hostile attack. Not only does Martin Marietta's misuse of infor- mation constitute a violation of explicit contractual obligations and the federal se- caurities laws, but it also offends all notions of business ethics and fair dealing. 2. Asdetailed below, Martin Marietta and Vulean engaged in private ne- gotiations regarding a potential consensual merger from 2010 through June 2011 ‘The two companies are national leaders in the production of construction aggre- ‘gates, including crushed stone, sand and gravel, and both realized that a transaction cartied potential benefits, To facilitate these consensual merger talks, Martin Ma- rietta and Vulcan entered into a letter agreement on May 3, 2010 covering confi- dentiality, use of information, and other terms (the “May 3 Letter Agreement”) But the patties soon decided that in addition to the May 3 Letter Agreement, a secnnd separate agreement — one that would specifically protect not only the ex- change of confidential informatior, but also attorney work product pursuant to a {joint defense and common interest understanding — was also necessary to advance the negotiations. Specifically, Martin Marietta and Vulcan realized that the ex-change of information and legal confidences would be nevessary ifthey were to ‘overcome the significant potential antitrust obstacles to a potential combination. Accordingly, the two companies exceuted a “Common Interest, Joint Defense and Confidentiality Agreement,” dated as of May 18, 2010 (the “Joint Defense and Confidentiality Agreement”), attachee hereto as Exhibit A. 3. The Joint Defense and Confidentiality Agreement was designed to al low Vulean and Martin Maricta to explore a consensval combination of the two companies, In the service ofthat objective, the partes agreed to “exchange infor mation, pool their individual work product and ... cooperate in a joint defense ef fort” ‘The agreement provided that “fl factual information, documents, op: nions, strategies, or other materials exchanged or communicated by whatever means between or among the Parties o their Counsel” would be maintained in complete confidence and would be used only to explore a negotiated merger trans- action. ‘The agreement provided that ll Confidential Materials “will be kept con- fidentil and disclosed only as specified by the Disclosing Party,” and used “solely for the purposes of pursuing and comoleting the Transaction,” — which was a éon- sensual, negotiated deal 4. Inreliance on the Joint Defense and Confidentiality Agreement, Vul- can shared highly sensitive and confidential business information with Martin Ma- rietta. Top management of the Company shared proprietary, nonpublic business,