Frequency/market practice: Fairly common. However, enforceability of non-competes is a question of state law and varies from state-to-state (although states with a ban on non-competes typically include an exception for the sale of a business). Legislation restricting the use of non-competes has frequently been proposed at the federal and state levels, resulting in the need to carefully tailor such provisions to ensure enforceability.

Frequency/market practice: Blue-pencilling provisions are commonly included in a severability clause in the agreement. Most states permit courts to modify non-competes. Some states allow modification only if the agreement contains a severability clause. A non-compete of a two-to-five-year duration, with three years being the most common, is typically enforceable in the M&A context.

Frequency/market practice: Fairly common. A buyer will typically require a seller to agree to refrain from soliciting any current or former employee of the target company for a specified period of time post-closing (the meaning of former employee is typically agreed between the parties).

Frequency/market practice: Fairly common. A buyer will typically require a seller to agree not to solicit the target's customers, or cause any of the target's customers to stop doing business with the target company, for a specified period of time post-closing.

Frequency/market practice: Very common; a seller typically agrees to conduct the target business in "the ordinary course" between signing and closing, but it is common to have carve-outs to the covenant, for example, for the seller to take actions as provided for in the agreement or to satisfy closing conditions. It is also very common for a seller to agree to negative covenants to refrain from engaging in certain corporate law and operational matters, including engaging in major financial transactions or entering into material contracts, between signing and closing.

Frequency/market practice: Rarely/fairly common. While access rights are generally given to buyers, the same is almost always qualified by reasonableness and access so as not is typically required not to interfere with the seller's and target company's business. Access restrictions based on purpose (i.e., for buyer’s integration efforts) and to protect confidential or privileged information are also common.

Frequency/market practice: Rarely/fairly common. Although the ability to update disclosure schedules is uncommon (agreements are typically silent on the matter), it is fairly common for an agreement to require the seller to notify the buyer of a possible breach of a representation or warranty of the seller.