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While state laws will often apply to constrain noncompete and nonsolicitation restrictive covenants imposed on employees, employers have found some success getting around state law requirements through compensation programs with "restoration" or "clawback" provisions. For example, in the recently decided Olander v. Compass Bank (attached), the 5th Circuit upheld a provision in an option agreement specifying that if the noncompete covenant were to "be held or found invalid or unenforceable for any reason whatsoever," the employer would be entitled to receive all the stock purchased with the option, or all gains from the sale of such stock purchased with the option while at the same time finding the noncompete covenants in the option agreement unenforceable under Texas law.

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