Frequency/market practice: Fairly common. However, enforceability of non-competes is a question of state law and varies from state-to-state. Recently, a number of states, plus the Federal Trade Commission, have proposed legislation restricting the use of non-competes, so the use of non-compete provisions may be impacted depending on whether these regulations become final and in what form (although some states' and the FTC's proposed regulations include an exception for the sale of a business).

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 three-to-five-year duration is typically enforceable in the M&A context, although this practice might change depending on whether or not the proposed restrictions on non-compete provisions (discussed above) become effective.

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. 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: Fairly common. Broad access is generally given to buyers, although the target may seek to limit access to specified members of the management team and may require access restrictions so as not to interfere with the seller's and target company's business.

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. In the case of a material breach of a representation or warranty of the seller, the buyer will typically have a right to terminate the transaction.