Common use of Determination of Fair Value Clause in Contracts

Determination of Fair Value. Where proceedings are not dismissed, the appraisal proceeding will be conducted in accordance with the rules of the Court of Chancery, including any rules specifically governing appraisal proceedings. Through such proceeding, the Delaware Court of Chancery will determine the ‘‘fair value’’ of the shares of Company Common Stock, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest, if any, to be paid upon the amount determined to be the fair value. In determining fair value, the Delaware Court of Chancery will take into account all relevant factors. Unless the court in its discretion determines otherwise for good cause shown, interest from the Effective Time through the date of payment of the judgment will be compounded quarterly and will accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the Effective Time and the date of payment of the judgment. However, the Surviving Corporation has the right, at any point prior to the Delaware Court of Chancery’s entry of judgment in the proceedings, to make a voluntary cash payment to each stockholder seeking appraisal. If the Surviving Corporation makes a voluntary cash payment pursuant to subsection (h) of Section 262, interest will accrue thereafter only on the sum of (1) the difference, if any, between the amount paid by the Surviving Corporation in such voluntary cash payment and the fair value of the shares as determined by the Delaware Court of Chancery and (2) interest accrued before such voluntary cash payment, unless paid at that time. In ▇▇▇▇▇▇▇▇▇▇ v. UOP, Inc., the Supreme Court of Delaware discussed the factors that could be considered in determining fair value in an appraisal proceeding, stating that ‘‘proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court’’ should be considered, and that ‘‘[f]air price obviously requires consideration of all relevant factors involving the value of a company.’’ The Delaware Supreme Court stated that, in making this determination of fair value, the court must consider market value, asset value, dividends, earnings prospects, the nature of the enterprise and any other facts that could be ascertained as of the date of the merger that throw any light on future prospects of the merged corporation. Section 262 provides that fair value is to be ‘‘exclusive of any element of value arising from the accomplishment or expectation of the merger.’’ In Cede & Co. v Technicolor, Inc., the Supreme Court of Delaware stated that such exclusion is a ‘‘narrow exclusion [that] does not encompass known elements of value,’’ but which rather applies only to the speculative elements of value arising from such accomplishment or expectation. In ▇▇▇▇▇▇▇▇▇▇ v. UOP, Inc., the Supreme Court of Delaware also stated that ‘‘elements of future value, including the nature of the enterprise, which are known or susceptible of proof as of the date of the merger and not the product of speculation, may be considered.’’ Stockholders considering seeking appraisal should be aware that the fair value of their shares as so determined by the Delaware Court of Chancery could be more than, the same as or less than the consideration they would receive pursuant to the Merger if they did not seek appraisal of their shares and that an opinion of an investment banking firm as to the fairness from a financial point of view of the consideration payable in a merger is not an opinion as to, and may not in any manner address, fair value under Section 262 of the DGCL. No representation is made as to the outcome of the appraisal of fair value as determined by the Delaware Court of Chancery, and stockholders should recognize that such an appraisal could result in a determination of a value higher or lower than, or the same as, the Per Share Price. Neither Natus nor Parent anticipates offering more than the Per Share Price to any stockholder exercising appraisal rights, and each of Natus and Parent reserves the rights to make a voluntary cash payment pursuant to subsection (h) of Section 262 and to assert, in any appraisal proceeding, that for purposes of Section 262, the ‘‘fair value’’ of a share of Company Common Stock is less than the Per Share Price. The costs of the appraisal proceedings (which do not include attorneys’ fees or the fees and expenses of experts) may be determined by the Delaware Court of Chancery and taxed upon the parties as the Delaware Court of Chancery deems equitable under the circumstances. Upon application of a stockholder, the Delaware Court of Chancery may also order that all or a portion of the expenses incurred by any stockholder in connection with the appraisal proceeding, including, without limitation, reasonable attorney’s fees and the fees and expenses of experts, be charged pro rata against the value of all the shares of Company Common Stock entitled to an appraisal. In the absence of such determination or assessment, each party bears its own expenses. If any stockholder who demands appraisal of his, her or its shares of Company Common Stock under Section 262 fails to perfect, or loses or validly withdraws, such holder’s right to appraisal, the stockholder’s shares of Company Common Stock will be deemed to have been converted at the Effective Time into the right to receive the Per Share Price as provided in the Merger Agreement. From and after the Effective Time, no stockholder who has demanded appraisal rights will be entitled to vote such shares of Company Common Stock for any purpose or to receive payment of dividends or other distributions on the stock (except dividends or other distributions payable to stockholders of record at a date which is prior to the Effective Time). Failure to comply strictly with all of the procedures set forth in Section 262 will result in the loss of a stockholder’s statutory appraisal rights. Consequently, any stockholder wishing to exercise appraisal rights is encouraged to consult legal counsel before attempting to exercise those rights. The Merger will be accounted for as a ‘‘purchase transaction’’ for financial accounting purposes. The completion of the Merger is conditioned on, among other things, any applicable waiting period (and any extensions thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the ‘‘HSR Act’’) and certain other antitrust and foreign investment laws having expired or been terminated, or all requisite consents pursuant thereto being obtained. Specifically, the Merger is conditioned on (i) merger control approval by (a) the Austrian Federal Competition Authority; (b) the Spanish National Markets and Competition Commission; (c) the European Commission, but only in the event of the Merger having been referred to the European Commission pursuant to Article (22)(1) of the EU Merger Regulation; and (d) the Competition and Markets Authority of the United Kingdom (‘‘CMA’’), or written confirmation in response to a briefing note that the CMA does not intend to open a Phase I investigation into the Merger; and (ii) foreign investment approval by

Determination of Fair Value. Where proceedings After the Delaware Court of Chancery determines which stockholders are not dismissedentitled to appraisal of their shares of Asensus common stock, the appraisal proceeding will be conducted in accordance with the rules of the Delaware Court of Chancery, including any rules specifically governing appraisal proceedings. Through such proceeding, the Delaware Court of Chancery will determine the ‘‘fair value’’ of appraise the shares of Company Common StockAsensus common stock, determining their fair value as of the effective time after taking into account all relevant factors exclusive of any element of value arising from the accomplishment or expectation of the Mergermerger, together with interest, if any, to be paid upon the amount determined to be the fair value. In determining fair valueWhen the value is determined, the Delaware Court of Chancery will take into account all relevant factorsdirect the payment of such value together with interest, if any, to Asensus stockholders entitled to receive the same. Unless the court Delaware Court of Chancery in its discretion determines otherwise for good cause shown, interest from the Effective Time effective date of the merger through the date of payment of the judgment will be compounded quarterly and will accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the Effective Time effective time and the date of payment of the judgment. However, the Surviving Corporation has the right, at any point prior to time before the Delaware Court of Chancery’s entry of judgment in the proceedings, to make a voluntary cash payment the surviving corporation may pay to each stockholder seeking appraisal. If the Surviving Corporation makes a voluntary cash payment pursuant entitled to subsection (h) of Section 262appraisal an amount in cash, in which case interest will accrue thereafter only on upon the sum of (1i) the difference, if any, between the amount so paid by the Surviving Corporation in such voluntary cash payment surviving corporation and the fair value of the shares as determined by the Delaware Court of Chancery Chancery, and (2ii) interest accrued before such voluntary cash payment, unless paid at that time. In determining fair value, the Delaware Court of Chancery is to take into account all relevant factors. In ▇▇▇▇▇▇▇▇▇▇ v. UOP, Inc., the Supreme Court of Delaware discussed the factors that could be considered in determining fair value in an appraisal proceeding, stating that ‘‘“proof of value by any techniques or methods which that are generally considered acceptable in the financial community and otherwise admissible in court’’ ” should be considered, and that ‘‘[f]air “fair price obviously requires consideration of all relevant factors involving the value of a company.’’ ” The Delaware Supreme Court stated that, in making this determination of fair value, the court Delaware Court of Chancery must consider market value, asset value, dividends, earnings prospects, the nature of the enterprise and any other facts that could be ascertained as of the date of the merger that throw any light on future prospects of the merged corporation. Section 262 provides that fair value is to be ‘‘exclusive of any element of value arising from the accomplishment or expectation of the merger.’’ In Cede & Co. v Technicolor, Inc., the Supreme Court of Delaware stated that such exclusion is a ‘‘narrow exclusion [that] does not encompass known elements of value,’’ but which rather applies only to the speculative elements of value arising from such accomplishment or expectation. In ▇▇▇▇▇▇▇▇▇▇ v. UOP, Inc.▇, the Supreme Court of Delaware also stated that ‘‘“elements of future value, including the nature of the enterprise, which are known or susceptible of proof as of the date of the merger and not the product of speculation, may be considered.’’ Stockholders considering seeking appraisal should be aware ” Section 262 of the DGCL provides that the fair value is to be “exclusive of their shares as so determined any element of value arising from the accomplishment or expectation of the merger.” In Cede & Co. v. Upon application by the surviving corporation or by stockholder entitled to participate in the appraisal proceeding, the Delaware Court of Chancery could be more thanmay, in its discretion, proceed to trial upon the same as or less than the consideration they would receive pursuant appraisal prior to the Merger final determination of the stockholders entitled to an appraisal. Any stockholder whose name appears on the Verified List and who has submitted such stockholder’s stock certificates, if they did not seek appraisal of their shares and that an opinion of an investment banking firm as any, to the fairness from a financial point of view Delaware Register in Chancery, if such is required, may participate fully in all proceedings until it is finally determined that such stockholder is not entitled to appraisal rights. When the fair value of the consideration payable in a merger shares is not an opinion as todetermined, and may not in any manner address, fair value under Section 262 of the DGCL. No representation is made as to the outcome of the appraisal of fair value as determined by the Delaware Court of ChanceryChancery will direct the payment of such value, and with interest thereon, if any, to the stockholders should recognize that such an appraisal could result entitled thereto, forthwith in a determination the case of a value higher uncertificated stockholders or lower than, or the same as, the Per Share Price. Neither Natus nor Parent anticipates offering more than the Per Share Price to any stockholder exercising appraisal rights, and each upon surrender by certificated stockholders of Natus and Parent reserves the rights to make a voluntary cash payment pursuant to subsection (h) of Section 262 and to assert, in any appraisal proceeding, that for purposes of Section 262, the ‘‘fair value’’ of a share of Company Common Stock is less than the Per Share Pricetheir stock certificates. The Delaware Court of Chancery’s decree may be enforced as other decrees in the Delaware Court of Chancery may be enforced. The Delaware Court of Chancery may also determine the costs of the appraisal proceedings proceeding (which do not include attorneys’ fees or the fees and expenses of experts) may be determined by the Delaware Court of Chancery and taxed upon the parties as the Delaware Court of Chancery deems equitable under in the circumstances. Upon the application of a stockholder, the Delaware Court of Chancery may also order that all or a portion of the expenses incurred by any stockholder in connection with the appraisal proceeding, including, without limitation, reasonable attorney’s attorneys’ fees and the fees and expenses of expertsexperts used in the appraisal proceeding, to be charged pro rata against the value of all the shares of Company Common Stock Asensus common stock or preferred stock entitled to an appraisal. In If no petition for appraisal is filed within 120 days after the absence effective time, or if the stockholder otherwise fails to perfect, successfully withdraws or loses such holder’s right to appraisal, then the right of such determination that stockholder to appraisal will cease and that stockholder will be entitled to receive the merger consideration (without interest) for his, her or assessment, each party bears its own expensesshares of Asensus common stock pursuant to the merger agreement. If any stockholder who demands appraisal of his, her or its shares of Company Common Stock under Section 262 of the DGCL fails to perfect, successfully withdraws or loses or validly withdraws, such holderstockholder’s right to appraisal, the such stockholder’s shares of Company Common Stock will be deemed to have been converted at the Effective Time effective time into the right to receive the Per Share Price merger consideration. A stockholder will fail to perfect, or effectively lose, the stockholder’s right to appraisal if no petition for appraisal is filed within 120 days after the effective date of the merger. Inasmuch as provided the Company has no obligation to file such a petition and has no present intention to do so, any stockholder who desires such a petition is advised to file it on a timely basis. In addition, a stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party may withdraw his, her or its demand for appraisal in accordance with Section 262 of the DGCL and accept the merger consideration by delivering to the Company a written withdrawal of such stockholder’s demand for appraisal and acceptance of the terms of the merger either within sixty (60) days after the effective date of the merger or thereafter with the written approval of the Company. Notwithstanding the foregoing, no appraisal proceeding in the Delaware Court of Chancery will be dismissed as to any stockholder without the approval of the Delaware Court of Chancery, and such approval may be conditioned upon such terms as the Delaware Court of Chancery deems just; provided, however, that the limitation set forth in this sentence will not affect the right of any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such stockholder’s demand for appraisal and to accept the merger consideration within sixty (60) days after the effective date of the merger. STOCKHOLDERS WHO HOLD THEIR SHARES IN BROKERAGE OR BANK ACCOUNTS OR OTHER NOMINEE FORMS, AND WHO WISH TO EXERCISE APPRAISAL RIGHTS, SHOULD CONSULT WITH THEIR BROKERS, BANKS AND NOMINEES, AS APPLICABLE, TO DETERMINE THE APPROPRIATE PROCEDURES FOR THE BROKER, BANK OR OTHER NOMINEE HOLDER TO MAKE A DEMAND FOR APPRAISAL OF THOSE SHARES. A PERSON HAVING A BENEFICIAL INTEREST IN SHARES HELD OF RECORD IN THE NAME OF ANOTHER PERSON, SUCH AS A BROKER, BANK OR OTHER NOMINEE, MUST ACT PROMPTLY TO CAUSE THE RECORD HOLDER TO FOLLOW PROPERLY AND IN A TIMELY MANNER THE STEPS NECESSARY TO PERFECT APPRAISAL RIGHTS. The following is a summary of certain material terms of the merger agreement. The summary is not complete and must be read together with the merger agreement, a copy of which is attached as Appendix A. We encourage you to read the merger agreement carefully and in its entirety because the rights and obligations of the parties are governed by the express terms of the merger agreement and not by this summary or any other information contained in this proxy statement. This summary may not contain all the information about the merger agreement that is important to you. Certain terms used in this summary, whether or not capitalized, are defined in the merger agreement. At the effective time of the merger, Merger AgreementSub will merge with and into Asensus, and the separate corporate existence of Merger Sub will cease. From Asensus will be the surviving corporation in the merger and will continue its corporate existence as a Delaware corporation and a wholly-owned subsidiary of Parent. At the effective time of the merger, the certificate of incorporation of Asensus will, by virtue of the merger, be amended and restated in its entirety to read the same as the certificate of incorporation included as Annex II to the merger agreement and will be the certificate of incorporation of the surviving corporation, except that the name of the surviving corporation will be the name and date of incorporation of the Company. Also at the effective time of the merger, the bylaws of the Company will be amended and restated in their entirety to read the same as the bylaws of Merger Sub (except that the name of the surviving corporation shall be the name of the Company), and such bylaws will be the bylaws of the surviving corporation. The directors of Merger Sub immediately prior to the effective time will, from and after the Effective Timeeffective time, no stockholder who has demanded appraisal rights will be entitled to vote such shares the directors of the surviving corporation, and the officers of the Company Common Stock for any purpose or to receive payment of dividends or other distributions on the stock (except dividends or other distributions payable to stockholders of record at a date which is immediately prior to the Effective Time). Failure to comply strictly with all effective time will, from and after the effective time, be the officers of the procedures surviving corporation, in each case, until their respective successors have been duly elected, designated or qualified, or until their earlier death, disqualification, resignation or removal, in accordance with the surviving corporation’s certificate of incorporation and bylaws. The closing of the merger will take place on (a) a date that is two (2) business days after the satisfaction or waiver (to the extent permitted by applicable law) of the conditions set forth in Section 262 will result in the loss of a stockholder’s statutory appraisal rights. Consequently, any stockholder wishing merger agreement to exercise appraisal rights is encouraged be satisfied or waived (other than those conditions that by their nature are to consult legal counsel before attempting to exercise those rights. The Merger will be accounted for as a ‘‘purchase transaction’’ for financial accounting purposes. The completion satisfied at the closing of the Merger is conditioned onmerger, among other things, any applicable waiting period (and any extensions thereofbut subject to the satisfaction or waiver of such conditions) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the ‘‘HSR Act’’) and certain other antitrust and foreign investment laws having expired or been terminated, or all requisite consents pursuant thereto being obtained. Specifically, the Merger is conditioned on (i) merger control approval by (a) the Austrian Federal Competition Authority; (b) such other time, location and date as Parent, Merger Sub and the Spanish National Markets Company mutually agree in writing. These conditions are described under “Conditions to Completion of the Merger” on page 68. The date on which the closing occurs is sometimes referred to as the closing date. At the closing, we will file the certificate of merger with the Secretary of State of the State of Delaware. The merger will become effective at the time when the certificate of merger is filed or at such later date or time as may be agreed by Asensus, Merger Sub and Competition Commission; (c) the European Commission, but only Parent and specified in the event certificate of merger. The date and time the merger becomes effective is referred to as the “effective time.” Each share of our common stock that is issued and outstanding immediately prior to the effective time of the merger (other than shares that are owned by Asensus as treasury stock and any shares owned by Parent or Merger having been referred Sub and any dissenting shares) will be converted into the right to receive $0.35 in cash, without interest and less any applicable withholding taxes. At the effective time of the merger, the shares will no longer be outstanding and will automatically be cancelled and will cease to exist, and each holder thereof will cease to have any rights with respect thereto, except the right to receive the merger consideration and for any stockholders who elect to pursue dissenter’s rights, their rights as dissenting stockholders under applicable law. At the effective time of the merger, each share of common stock of Merger Sub outstanding immediately prior to the European Commission pursuant to Article (22)(1) effective time of the EU Merger Regulation; merger will be converted into and (d) the Competition become one validly issued, fully paid and Markets Authority nonassessable share of common stock of the United Kingdom (‘‘CMA’’), surviving corporation. Any shares subject to an option or written confirmation in response to a briefing note that the CMA does not intend to open a Phase I investigation into the Merger; and (ii) foreign investment approval byrestricted stock award will be treated as described under “Treatment of Asensus Equity Awards” below.