Effective Time shall be canceled and terminated as of the Effective Time and (iii) the holder of each such Company RSU Award shall be entitled to be paid an amount in cash (without interest)
equal to the product obtained by
multiplying
(x) the aggregate number of Company Shares underlying such Company RSU Award immediately prior to the Effective Time,
by
(y) the Merger Consideration.
The consummation of the Merger is also subject to the satisfaction (or waiver, if applicable) of various customary conditions, including (i) adoption of
the Merger Agreement by the requisite vote of the Companys stockholders (the Company Stockholder Approval), (ii) review and clearance by the Committee on Foreign Investment in the United States, (iii) the absence of any law or
governmental order making illegal or prohibiting the Merger, (iv) the accuracy of the representations and warranties of each party contained in the Merger Agreement (subject to certain materiality qualifications), (v) each partys
compliance with or performance of the covenants and agreements in the Merger Agreement in all material respects and (vi) other customary closing conditions.
In connection with the Merger Agreement, certain executive officers, directors and stockholders of Intermolecular (solely in their respective capacities as
stockholders of the Company) holding approximately 31.0% of the outstanding Company Shares as of the date of the Merger Agreement have entered into support agreements with Parent to vote all of their Company Shares in favor of the adoption of the
Merger Agreement and approval of the Merger (the Support Agreements). The Support Agreements include covenants with respect to the voting of such Company Shares in favor of approving the Merger and against any competing acquisition
proposals and place certain restrictions on the transfer of the Company Shares held by the respective signatories thereto.
Each of the Company, Parent
and Merger Sub have made customary representations, warranties and covenants in the Merger Agreement. The Company has made covenants, among others, (i) to conduct its operations in all material respects according to its ordinary course of
business, including not taking certain specified actions, during the period between the execution of the Merger Agreement and the closing of the Merger, (ii) to convene and hold a meeting of the Companys stockholders for the purpose of
obtaining the Company Stockholder Approval and (iii) subject to certain exceptions, not to withhold or withdraw (or qualify or modify in a manner adverse to Parent or Merger Sub) the recommendation of the Board that the Companys
stockholders adopt the Merger Agreement. The Company is also subject to customary restrictions on its ability to solicit alternative acquisition proposals from third parties and to provide
non-public
information to, and participate in discussions and engage in negotiations with, third parties regarding alternative acquisition proposals, with customary exceptions for alternative acquisition proposals that the Board determines either constitute or
would reasonably be expected to lead to a superior acquisition proposal.
The Merger Agreement contains certain termination rights for the Company and
Parent. Upon termination of the Merger Agreement under specified circumstances, including in connection with the Companys entry into a definitive agreement providing for the consummation of a superior proposal as permitted under the Merger
Agreement, the Company will be required to pay Parent a termination fee of $2,338,109.
Concurrently with the execution of the Merger Agreement, Merck
KGaA, Darmstadt, Germany (Merck KGaA) has entered into a guarantee pursuant to which Merck KGaA has agreed to guarantee, as primary obligor and not merely as surety, the due and prompt payment and performance of all covenants,
agreements, obligations, expenses and liabilities of Parent and Merger Sub under the Merger Agreement, including the obligation to pay the Merger Consideration.
The Merger Agreement, the Merger and the other transactions contemplated therein were unanimously approved by both the Board and the board of directors of
Parent. The Board has recommended that the Companys stockholders adopt the Merger Agreement and approve the transactions contemplated therein, including the Merger.