A non-solicitation clause (no-solicitation, clause de non-sollicitation) is a contractual provision preventing one party from soliciting or recruiting the employees, clients, or suppliers of the other party for a defined period. It is distinct from a non-compete clause: the non-solicitation does not prohibit engaging in competing activities generally, but specifically prohibits targeted approaches to identified individuals or relationships. It appears in M&A documentation at multiple levels: NDAs (protecting the target's employees during due diligence), SPAs (protecting clients and suppliers of the sold business post-closing), and management packages (reciprocal non-solicitation between PE fund and management team).

Under French law, non-solicitation clauses are valid if limited in time and scope — an unlimited or overly broad clause would be unenforceable. Swiss law (Article 340 et seq. CO) similarly limits non-solicitation of employees to a maximum of three years (Article 340a para. 1 CO) and requires that the clause be proportionate to protect a legitimate business interest. Breach of a non-solicitation clause typically triggers a contractual penalty (typically CHF 10,000–100,000 per occurrence) and may justify an injunction in appropriate cases.

In practice, the non-solicitation of key employees is one of the most commercially sensitive provisions in any business sale: the buyer fears that the seller will recruit the target's best talent after closing; the seller fears the buyer may approach them pre-close during the due diligence process. Balancing these competing interests — and documenting the clause with appropriate carve-outs for general advertising and passive recruitment — is a nuanced negotiating exercise.

At Hectelion, we structure and negotiate non-solicitation clauses in NDAs and SPAs in our Franco-Swiss M&A advisory mandates.