of confidential information by the employee. Audio Properties, Inc. v. Kovach, 275 Ill. App. 3d 145, 655 N.E.2d 1034, 1037, 211 Ill. Dec. 651 (Ill. App. Ct. 1995); Hamer I, 560 N.E.2d at 915-16.
Therefore, at the outset we must decide whether the covenant in this case was ancillary to the sale of D&S or ancillary to Haberichter's Employment Agreement. Resolution of this issue depends on the existence of "'facts bearing on the intent of the parties to protect the integrity of the sale.' Such facts may include: whether the covenant was a condition precedent to the sale; whether the covenant was incorporated into the sale agreement; and the time that the parties signed the covenant in relation to the time they signed the sales agreement." Lueth, 981 F.2d at 960 (quoting and citing Hamer I, 560 N.E.2d at 916, and O'Sullivan v. Conrad, 44 Ill. App. 3d 752, 358 N.E.2d 926, 929, 3 Ill. Dec. 383 (Ill. App. Ct. 1976)). In this case it is clear that Haberichter's continued employment was not a condition precedent to the sale of D&S to Loewen. Although Loewen was obligated to offer Haberichter employment with the company, the Purchase Agreement explicitly relieved the company of this obligation if Haberichter did not wish to accept. Indeed, it appears from the correspondence between the attorneys for Loewen and Haberichter on February 12-13, 1992, that Haberichter unconditionally tendered his Employment Agreement only after the sale of D&S had closed. Nor was the covenant incorporated into the Purchase Agreement, as it was for the principals of D&S. Rather, the Purchase Agreement merely made Loewen's obligation to offer employment to Haberichter contingent upon his signing a covenant similar to the one executed by the owners of D&S. Finally, although the deal to purchase D&S was closed at about the same time Haberichter signed the Employment Agreement, the actual Purchase Agreement was signed and dated December 11, 1991--a full two months before the closing date on February 11, 1992. Based on these facts, we cannot conclude that the Employment Agreement with Haberichter was signed in order to protect the integrity of the sale of D&S to Loewen. Cf. Lueth, 981 F.2d at 960 (finding covenant ancillary to sales agreement where noncompetition agreement was condition precedent to purchase, was incorporated into sales agreement, and was executed simultaneously with sales agreement); Decker, Berta and Co., Ltd. v. Berta, 225 Ill. App. 3d 24, 587 N.E.2d 72, 73-76, 167 Ill. Dec. 190 (Ill. App. Ct.) (upholding trial court's finding that covenant was ancillary to sale of business where purchaser required the two employees of the business to enter into employment agreements contemporaneous with the sale), appeal denied, 638 N.E.2d 1115 (Ill. 1992); Hamer I, 560 N.E.2d at 916-17 (finding covenant ancillary to sales agreement where acquisition agreement explicitly required execution and delivery of employment agreement as condition precedent). Accordingly, we hold that the covenant not to compete was ancillary to Haberichter's Employment Agreement.
We next turn to whether the covenant was enforceable. The reasonableness of a post-employment covenant not to compete is a question of law, Lyle R. Jager Agency, Inc. v. Steward, 253 Ill. App. 3d 631, 625 N.E.2d 397, 400, 192 Ill. Dec. 437 (Ill. App. Ct. 1993), although the determination of whether a particular covenant is enforceable depends upon the unique circumstances of each case, Hamer Holding Group, Inc. v. Elmore (Hamer II), 244 Ill. App. 3d 1069, 613 N.E.2d 1190, 1198, 184 Ill. Dec. 598 (Ill. App. Ct. 1993). Considering the evidence submitted at this point in the litigation, we are unable to determine if the covenant was reasonable as to its duration, geographical reach, and scope. Although tnree-year restrictive employment covenants have been upheld before, e.g., Berta, 587 N.E.2d at 77, the parties dispute whether such a lengthy period of time was necessary in this case to protect Loewen.
Similarly, the parties disagree about the reasonableness of the ten mile restriction on Haberichter's employment: Loewen argues that 75% of its business comes from a ten mile radius around its funeral homes, while Haberichter contends that the legitimate range of Oehler and L&O's business is much less. These disputes cannot be resolved without an evidentiary hearing, and thus we are not in an appropriate position to rule on the motion at this time.
Likewise, there is disputed evidence as to the existence of a "near-permanent" relationship between Loewen and its customers. In evaluating a claim of near-permanency, courts are to consider the following objective factors:
(1) the length of time required to develop the clientele; (2) the amount of money invested to acquire clients; (3) the degree of difficulty in acquiring clients; (4) the extent of personal customer contact by the employee; (5) the extent of the employer's knowledge of its clients; (6) the duration of the customer's association with the employer; and (7) the continuity of the employer-customer relationships.