Drafting Post-Closing Modifications in M&A: When E-mails Fail to Qualify as Agreement

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A buyer in an M&A transaction thought it modified the deal post-closing via its e-mail communications between the parties. The Delaware Court of Chancery disagreed.

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In Genesis CMG Holdings, LLC and Converze Media Group, LLC v. Tedd Barr and Simplicity Media Group, LLC, decided on June 11, 2026, the court upheld a lapse of a restrictive covenant agreement in an M&A transaction. Barr, the former managing partner of Converze, an advertising and media company, through his new company Simplicity Media Group solicited clients of Converse and many of its employees just over a year after Genesis purchased Converz. As M&A buyers require a restrictive covenant agreement (“RCA”) that prevent the sellers from solicitation of clients and customers, as well as restrict competition for a finite period, Genesis’s purchase of Converze did as well. The RCA, however had a condition that it would expire if a note payment was not made to Barr by the one-year anniversary of the RCA, as well as required any modification to the RCA be in a written instrument signed by Genesis and Barr. E-mail conversations between the parties later allegedly ensued that a shareholder loan offset the seller note, and thus the seller note was no longer required to be repaid.

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The case hinged on the plaintiff’s belief it had satisfied a signed written agreement to modify the RCA through written e-mails between the parties. The court disagreed. It said:

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On this RCA modification point, Plaintiffs argue that the alleged written email exchanges constitute the signed written agreement contemplated by RCA Section 18. But Plaintiffs failed to provide any authority to support this position. Our Courts have held that email conversations are not a written signed agreement. Kokorich v. Momentous, Inc., 2023 WL 3454190, at *9–10 (Del. Ch. May 15, 2023), aff’d, 308 A.3d 1192 (Del. 2023) (where a separation agreement required a signed writing by both parties, the Court rejected email correspondence where one party wrote that it “will agree” in reference to a future signed agreement); (holding that an oral amendment followed by subsequent email chains did not satisfy the requirement that any modifications be by “subsequent writing executed by the parties hereto.”)

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Agreeing to agree or intent to agree via e-mail did not replace agreement itself, as the RCA warranted. Not only should definitive and ancillary M&A agreements be drafted carefully, but any post M&A modifications that require signed instruments must actually be in that form, rather than by e-mail. Let the wary beware.

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Jerome Fogel is co-founder of Fogel & Potamianos LLP, a firm recognized by Chambers & Partners’ California Spotlight Guide for excellence in corporate law. A partner in the Corporate Practice Group and Chair of the Sports & Entertainment Group, he is known as an innovator and dealmaker in the legal community. He serves as a general counsel to privately held companies, including representation in mergers and acquisitions. 

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