Function Follows Form - Enforcement of Restrictive Covenants After Company Acquisition May Hinge on Structure of the Deal

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In late 2009 and early 2010, Pennsylvania state and federal appellate courts clarified the ability of employers to assign non-competition agreements as part of a merger or sale of a company. In both cases, the court distinguished between a stock sale and an asset sale. Both courts held that non-competition agreements with employees could be assigned, even without the employee’s consent, if the change in ownership of the company is effected through a stock, rather than an asset, acquisition.

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