Finally, the court found that Martin Marietta`s attacks on the press and investors clearly contravened the NDA and the JDA. The court found that Martin Marietta was not authorized to open the floodgates of Vulcan`s confidential information to the world simply because they had made some revelations with the SEC. The Court rejected Martin Marietta`s argument that once the information is disclosed by the SEC, it is no longer confidential and may continue to be disclosed to the public. Without further considering the facts, the SC upheld the Chancery Court`s decision that the only transaction contemplated under the NDA and JDA was an out-of-court merger and not a hostile offer. In addition, the SC interpreted the language of the NDA to mean that Martin Marietta`s disclosure to the SEC did not meet an external legal claim as required under the NDA and constituted a violation of the NDA. In addition, the SC upheld the Chancery Court`s decision regarding non-compliance with the termination and verification procedure imposed by the NOA and disclosure to the press and investors. In addition, Martin Mariette had testified before the SC that the chancellery had secretly transformed the NDA and the JDA into a “status quo agreement” that had not been contemplated or agreed between the parties. The Delaware Supreme Court (“SC”) issued an official notice on July 10, 2012, out of its May 31, 2012 decision (the “market”) to temporarily prevent Martin Marietta Materials, Inc. (“Martin Marietta”) from pursuing a hostile takeover bid against Material Vulcans Co. (“Vulcan”). The decision confirms the Delaware Court of Chancery`s decision in this matter and has attracted the attention of companies that view the transactions of M-A and justice practitioners in the same way. While the College recalls and reinforces the importance of confidentiality agreements in trade and development agreements, the Order`s novelty is that it highlights the possibility of confidentiality agreements that, in some cases, overshadow the nuances of “status quo” agreements. This is particularly important for transactions involving listed securities that infringe securities of listed companies, when they are in possession of confidential price sensitive information, can have uninitiated effects.
As a general rule, an PE investor is diligent with respect to the target company in PIPE`s operations and, as a result, the PE investor may be alerted to certain price-sensitive information about the target company. Disclosure of confidential pricing-sensitive information held by the bidder/acquirers/PE-Investors may be necessary to avoid a breach of insider trading legislation, but if such disclosure is prohibited by the contract, the PE bidder/investor may not be able to make a hostile offer. In addition, confidentiality agreements, even for unlisted companies, could prevent the acquirer from acquiring a competing business that issues a business similar to that of the entity concerned if the entity concerned is able to demonstrate that the confidential information of the target entity was used by the acquirer to the detriment of the target entity. In this case, the Indian courts could treat confidentiality clauses as status quo clauses, which would deprive the purchaser of the acquisition of a competing company. The SC rejected Martin Marietta`s assertion and found that this argument was irrelevant on the merits, that it was irrelevant and that it was a proper analysis of the actual contractual issues. The Tribunal recognized that non-status quo agreements and confidentiality agreements vary in quality. The Tribunal stated that it was indisputable that the NDA and the JDA were confidentiality agreements and not status quo agreements, as they had not prevented Martin Marietta from making an offer hostile to Vulcan; however, they ruled out Martin Marietta using and dividing Vulcan`s confidential information, unless the NDA and JDA expressly authorized it.