Bradford, J.
Beginning in 2012, Heraeus Medical GmbH and Zimmer Surgical, Inc., had an agreement pursuant to which Zimmer Surgical had exclusive United States distribution rights to certain bone cements manufactured by Heraeus Medical GmbH and sold under the brand name Palacos (“the Distribution Agreement”). Zimmer Surgical is a subsidiary of Zimmer, Inc., d/b/a as Zimmer Biomet. In late 2017, Robert Kolbe was an employee of Zimmer Biomet and had signed an agreement containing non-compete and non-solicitation of Zimmer Biomet customers and employees covenants (“the Kolbe Agreement”). In January of 2018, Heraeus Medical GmbH exercised its right to terminate the Distribution Agreement as of December 2018. Soon thereafter, Heraeus Medical GmbH announced that it had established a new direct sales force for Palacos through its newly-established American affiliate, Heraeus Medical, Inc. (“Heraeus”), which included Kolbe, who had left Zimmer Biomet in November of 2017.
In February of 2018, Zimmer Biomet and Zimmer US, Inc. (collectively, “Zimmer”), sued, inter alia, Heraeus and Kolbe on various grounds, also seeking a preliminary injunction enforcing the Kolbe Agreement and the restrictive covenants signed by the other individual defendants. … While we largely disagree with Appellants’ arguments, we do agree that the Kolbe Agreement’s covenant not to solicit Zimmer Biomet employees is overbroad and so reform it to comply with Indiana law. We also agree that in crafting its preliminary injunction, the trial court (1) incorrectly defined the geographic scope of the Kolbe Agreement and (2) applied the term “contact” in a way inconsistent with the Kolbe Agreement. We affirm in part, reverse in part, and remand with further instructions.
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Appellants contend that the Kolbe Agreement is void because it does not contain a clearly-defined territory. …
… As for that evidence in this case, Kolbe conceded that the map admitted as Plaintiff’s Exhibit 129 accurately reflected his territory while at Zimmer Biomet. …
Appellants argue that the map that is Exhibit 129 is not accurate enough to determine precisely which territories are included in the East region. For the most part, we disagree. The vast majority of the border between the East and West regions is obviously defined by the borders between various states. Appellants are correct, however, that Exhibit 129 indicates that not all of Michigan is in the East and so was not included in Kolbe’s territory at Zimmer Biomet. Specifically, it appears that a large portion of the Upper Peninsula of Michigan is, in fact, included in the West region. We remand with instructions to clarify which portions of Michigan are assigned to the East region and which are in the West.
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Appellants would have us invalidate the entire Kolbe Agreement due to this overbreadth, but we choose to reform the overbroad provision instead. As a general rule, “[i]f a court finds that portions of a noncompetition agreement or covenant not to compete are unreasonable, it may not create a reasonable restriction under the guise of interpretation, since this would subject the parties to an agreement they have not made.” Gleeson v. Preferred Sourcing, LLC, 883 N.E.2d 164, 177 (Ind. Ct. App. 2008). Here, however, the parties specifically agreed that we have the authority “to reform any [unreasonable] provision to make it enforceable under applicable law.” Appellants’ App. Vol. IV p. 156. To that end, we reform the non-solicitation of employees covenant of the Kolbe Agreement to be limited in scope to those employees in which the company has a legitimate protectable interest.
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As for Appellants’ claim that insertion of the word “contacting” into the preliminary injunction was unreasonable, we acknowledge that they have a point. The non-solicitation language in the Kolbe Agreement prohibits Kolbe from contacting his former customers or active contacts, but only if it is “for the purpose of selling, soliciting or influencing any Customer or individual affiliated with any Customer that purchases Competing Products or complimentary or ancillary medical services[.]” Appellants’ App. Vol. IV p. 153. Although Kolbe was enjoined from contacting former customers and active contacts for all purposes, the Kolbe Agreement did not go that far. We remand with instructions to narrow the scope of the preliminary injunction accordingly.
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As mentioned, we have reformed the Kolbe Agreement to limit the scope of Kolbe’s obligation not to solicit Zimmer Biomet employees to those in which it has a legitimate protectable interest. We remand with instructions to narrow the scope of the preliminary injunction accordingly.
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Conclusion
We conclude that all of Appellants’ claims regarding Burns are moot. We also conclude that (1) the Kolbe Agreement is not rendered unenforceable because it lacks a defined geographic scope and (2) its covenant to not solicit customers of active contacts is not overbroad. We do agree, however, that the Kolbe Agreement’s covenant not to solicit Zimmer Biomet employees is overbroad, and so reform it as the parties agreed the court has the power to do. We also agree with Appellants that the trial court misapplied the Kolbe Agreement in enjoining Kolbe from operating in the entire state of Michigan and from contacting his former customers or active prospects for any reason whatsoever. Finally, we conclude that Appellants have not established that the trial court’s preliminary injunction as it related to Heraeus was unreasonable in any respect.
We affirm the interlocutory order of the trial court in part, reverse in part, and remand for further proceedings consistent with this opinion.
Crone, J., and Tavitas, J., concur.