asset acquisitions - Jackson Walker LLP

(vii) any Liability under any employment, severance, retention or terminationagreement with any employee of Seller or any of its Related Persons;(viii) any Liability arising out of or relating to any employee grievance whether ornot the affected employees are hired by Buyer;(ix) any Liability of Seller to any Shareholder or Related Person of Seller or anyShareholder;(x) any Liability to indemnify, reimburse or advance amounts to any officer,director, employee or agent of Seller;(xi) any Liability to distribute to any of Seller’s shareholders or otherwise applyall or any part of the consideration received hereunder;(xii) any Liability arising out of any Proceeding pending as of the Effective Time,whether or not set forth in the Disclosure Letter;(xiii) any Liability arising out of any Proceeding commenced after the EffectiveTime and arising out of, or relating to, any occurrence or event happening prior to theEffective Time;(xiv) any Liability arising out of or resulting from Seller’s non-compliance withany Legal Requirement or Order of any Governmental Body;(xv) any Liability of Seller under this Agreement or any other document executedin connection with the Contemplated Transactions; and(xvi) any Liability of Seller based upon Seller’s acts or omissions occurring afterthe Effective Time.COMMENTThe differences between asset and stock acquisitions is clearly seen in the area ofliabilities. In a stock acquisition, the buyer, in effect, acquires all assets of the companysubject to all its liabilities. In an asset acquisition, the buyer typically will not agree toassume all liabilities of the business being acquired, although some areas of liability mayfollow the assets in the hands of a successor. See the discussion of successor liabilitycontained in Section IV above.In an asset acquisition, the assumption and retention of liabilities is ordinarily aheavily negotiated issue, dependent in large part upon the economic agreement of the parties.The outcome of that negotiation will depend upon the results of the buyer’s due diligenceand negotiations between the parties on other economic matters.As to approach, most buyers will desire to identify the liabilities they will assumewith as much specificity as practicable to reduce the chance for unanticipated exposure andcontroversy. To protect itself after the closing, the buyer will want indemnification if forsome reason it is forced to pay any liability retained by the seller. It will be important to the3148166v1- 49 -