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What are Negative Covenants (Restrictive)?
A negative covenant is a restrictive covenant which restricts one party from doing certain activities. A negative covenant is hence also called a restrictive covenant. Whenever there is a formal agreement between two parties, some legal restrictions are put on each of the party which could be limiting the ability to conduct business. All the restrictive clauses in the agreement are the negative covenants.
Negative Covenants are used in almost all types of contracts/agreements:
- Employment contracts
- Mergers and acquisitions
- Bond documents
- Land use/ Rent agreements etc.
This can be used as a part of an agreement or it could be a separate agreement as a whole. It serves different purposes depending on the type of a contract, however, it is generally done to prevent one party’s interest over the other party.
Also, have a look at Bond Covenants
3 Main Types of Negative Covenants (Restrictive)
Let us see the types of negative covenants in various transactions/agreements:
#1 – Non – Compete Agreement
A non-compete agreement is mainly written in employment contracts or acquisitions contract.
During an acquisition the new owner when takes over a Company and its business signs a non-compete agreement such that the old owner of the business does not start the same business again and start competing. The non-compete agreement is usually for a specific period of time and for a region. The new owners of the business usually pay non-compete fees to the original owners for not entering into the business.
Non-compete agreements also restrict employees from joining a competitor or opening the business same as that of the Company he is employed with. This is usually done to restricts employees from being a competitor of the Company after attaining necessary training, skills, and experience. Such non-compete agreements in employee contracts vary from 6 months to 2 years.
#2 – Non-Solicitation Agreement
A non-solicitation agreement restricts professionals, employees from soliciting the customers or clients from their previous employees. Consultants, in general, get to know the clients very well, they may be tempted to start their own business and solicit the clients of their employer or they may join a competitor and solicits the clients to the new employer. Such an agreement restricts them to do so.
#3 – Non-Disclosure Agreement
A non-disclosure agreement restricts one party to disclose any information of another party. The information may include trade secrets, propitiatory information, innovations or any other information which may harm the business of the owner of such information. Eg. Research scientists, pharmacists working in laboratories other researchers are bound by such agreements. They work on new products and innovations and their employer would like to have a competitive advantage by innovating new products. Thus, he would protect the flow of the information to competitors by signing a non-disclosure agreement.
Restrictive Covenants in Bond Indentures
Covenants are also found in the bond indentures. Such restrictive covenants are placed to safeguard the interests of the bond investors. These are used in the bond issues to protect the investors’ money and they restrict the bond issuers from taking risky bets or such material changes which may impact the investors. However, more the number of negative covenants lesser is the interest rate on such bonds. The restrictive covenants list may include:
- Not altering accounting practices
- Limit on debt
- Limit of dividend payment
- Limit on contracts/leases or any amendments thereof
- Maintenance of certain financial ratios in particular range – examples of few such ratios are:
For Negative Covenants Examples: A company wants to borrow $ 100 Mn of debt but the loan agreement has a restriction on the payment of dividend. The dividend paid to the shareholders cannot exceed $ 1 per share in one year.
In Bond indentures, the covenants can be of two types
- Operation Covenant: Operational covenants are those which relate to operations of the Company. They put restrictions on the operations of the Company which can be – borrower has to meet certain disclosure requirements, it cannot take certain operations or line of business, maintain the certain level of insurance.
- Financial Covenant: Financial covenants are like maintenance of finances and financial ratios at a certain level eg. debt to equity ratio of 2:1, minimum working capital requirements, maintenance of interest coverage ratio etc.
Lenders like to have negative covenants to bond issues so that the borrower operates at a certain level of risk and thus ensures that the lender’s money is safe. If the borrower violates negative covenants it is considered as a “technical default”. Although, the borrower might be paying interest and principal payments but violating negative covenants may lower its credit rating.
Negative Covenants in Employment Contracts
Employment contracts have non-compete and non-disclosure agreements in general. Employees are restricted from disclosing any information they have during their employment and to compete with their employer. The employer tries to secure his interests as he had invested time and money on employees by giving them initial training, skills, and experience. The employee might have access to some information maybe trade secrets, proprietary information or such other data or information which may affect the employer. Thus, by signing a non-disclosure agreement the employer legally ensures that such information is not passed to the competitor.
Negative Covenants are the restrictive covenants which restrict one party to take on some operations or work in a financially prudent way so to safeguard the interests of the other party. These are found in most of the agreements. The agreements could be a merger or acquisition, employee contracts, bond indentures etc. It though mentioned in agreements but face enforcement problem. If negative covenants are violated or breached it may take a long time to be settled by the court of law. Further, it will be costly for both the parties given that the damage as already is done.
Negative Covenants Video
This has been a guide to What are Negative Covenants? Here we discuss the three types of negative covenants – non compete, non-disclosure and non-solicitation. We also discuss a restrictive covenant example found in bond indentures. You may learn more about Fixed Income from the following articles –