Noncompete Covenants in M&A: Structuring to Bind Sellers and Key Employees

Covenants not to compete are a critical--and often closely scrutinized--component of any M&A transaction, and practitioners must be able to carefully craft these covenants in a manner that will stand up to post-closing judicial scrutiny.

Most states distinguish between the law governing covenants not to compete when incident to the sale of a business and the law governing these covenants arising solely out of employment. This means that noncompete covenants applicable to sellers in an M&A transaction must be approached differently than those applicable to key employees of the acquired company. With respect to sellers, the presence of reasonable consideration and a clear nexus between that consideration and the covenant is essential. Courts generally respect restrictive covenants in employment agreements for the duration of employment, and noncompetes can survive the term of employment if drafted to comply with state law.

In addition to enforceability issues, the appropriate contours of non-competition restrictions are highly fact-dependent and require careful consideration of the circumstances of each buyer and seller. Failing to tailor non-competition covenants to these circumstances can result in a seller being unreasonably restricted from future endeavors and a buyer being inadequately protected.

Listen as our authoritative panel analyzes covenants not to compete in M&A transactions. The panel discussion will compare New York, Delaware, and California case law relating to noncompetes and noncompetes about sellers and key employees.