At issue herein is the legality and scope of a noncompetition agreement between plaintiff and defendant Schmertzler, the former chief administrative and *230chief financial officer of Lehman Brothers, who sold his stock in Lehman to plaintiff and thereafter resigned from Shearson Lehman in May 1985 and assumed employment with defendant Morgan Stanley the following month.
However, the precise question presented to us is whether Special Term exceeded its discretion in issuing a preliminary injunction enforcing the terms of a covenant not to compete executed in connection with the sale of a business.
Schmertzler is not exactly the seller of a small neighborhood grocery store who is prevented from making a living by a covenant not to compete. He is a sophisticated tycoon of American business who apparently has taken the substantial benefits of the very deal which he helped shape, the obligations of which he now seeks to repudiate.
Schmertzler joined Lehman Brothers as an entry level associate in 1977 upon his graduation from Harvard Business School. In January 1983, after being advanced to various positions as, inter alia, vice-president of the Investment Banking Division, he was promoted to the position of chief financial officer. Later that year he became, in addition, chief administrative officer. In September 1983, Schmertzler became a managing director—the equivalent of partner—and was invited to purchase 500 shares of stock in the firm.
At that time, Lehman Brothers Kuhn Loeb Incorporated was an independent corporation, the product of an earlier merger between the Lehman Brothers and Kuhn Loeb firms. This corporation was a wholly owned subsidiary of Lehman Brothers Kuhn Loeb Holding Co., Inc. The capital stock of Lehman was owned almost exclusively by the individual members of the board of managing directors. They controlled the distribution of shares for purchase by newly elected directors.
In April 1984, Lehman and Shearson agreed that Shearson, which itself had been acquired by American Express, would acquire the entirety of Lehman’s business. In the first of three interrelated agreements (the stock purchase agreement), it was agreed that the American Express Co., Shearson’s parent, would acquire the stock of Lehman Brothers which had been outstanding for over one year and transfer that stock to Shearson. Second, by a stock option agreement, American Express acquired an option to purchase the remaining shares of Lehman stock, i.e., the shares which had been outstanding for less than one year. This included Schmertzler’s 500 shares, which represented .5% of Lehman stock. Upon the exercise of *231the option, all of the stockholders subject to the stock option agreement were to be deemed subject to the stock purchase agreement. Third, certain managing directors were to sign, and did sign, noncompetition agreements for a three-year period from the closing date of the stock purchase agreements. Under the agreements, the Lehman director-shareholders were to become employees of the new entity. Each would receive a package of cash and notes commensurate with his holdings, as well as incremental payments over time from a bonus pool.
The noncompetition agreement, signed by certain managing directors including Schmertzler, provided that the certain stockholders would not engage in any business in substantial competition for a period of three years after the closing date of the stock purchase agreement.
On May 11, 1984, American Express acquired approximately 90% of all of the outstanding capital stock of Lehman in accordance with the stock purchase agreement, paying $280,037,512. On or about November 19, 1984, American Express and Shearson took delivery of the remaining stock of Lehman, including the 500 shares owned by Schmertzler, in accordance with the terms of the stock purchase agreement, paying $37,251,276.
Meanwhile, in July 1984, Schmertzler had become head of the new Shearson organization’s International Investment Banking Department, and he thereafter moved to London. In about March 1985, Schmertzler expressed dissatisfaction with his position and contacted Morgan Stanley, who made him an oifer to join the firm, which he accepted. He began working at Morgan Stanley on June 10, 1985.
Shearson thereafter commenced this action alleging Schmertzler’s breach of the noncompetition agreement and breach of his fiduciary duty to Shearson, and Morgan Stanley’s intentional interference with Shearson’s contractual relations.
Shearson also moved for a preliminary injunction to enjoin Schmertzler from performing investment banking services for Morgan Stanley and to enjoin Morgan Stanley from employing Schmertzler as an investment banker within a 90-mile radius of New York City during the pendency of the action.
Special Term held that the noncompetition agreements were intended to be an integral part of the acquisition and that a noncompetition agreement in connection with the sale *232of the business was permissible if necessary to protect the new owner and not unnecessarily burdensome to the promissor. The court noted Schmertzler’s contention that the agreement should not be regarded as one in connection with the sale of a business, but simply as an employment contract. It held, however, that the situation contained elements of both the sale of a business and an ordinary employment contract. It was only because of the acquisition agreements that Schmertzler and his colleagues ceased being owners and became employees of the successor firm. Further, Special Term viewed the execution of noncompetition agreements by all key Lehman personnel as an important part of the entire acquisition plan and found that Shearson’s purpose in the agreement was the preservation of the reputation, good will, operational effectiveness and expected potential of the business.
Special Term also held that the scope of the covenant was reasonable in terms of geographical area, time and subject matter.
With respect to the term "substantial responsibilities”, the court rejected Schmertzler’s limited definition and held that the absence of a definition did not create an ambiguity, but rather indicated that the parties intended that the term be given its ordinary meaning. Special Term further found nothing in the documents to lead to the conclusion that a special definition of "substantial responsibilities” was intended and refused to consider the affidavits submitted in opposition to the motion in order to change the unambiguous provisions of the covenant.
As to whether the noncompetition agreement prohibited Schmertzler from performing activities of a type he performed for the preacquisition entity or those activities performed for both the pre and postacquisition entities, the court concluded that it would make no sense to prohibit Schmertzler from performing for a competitor only such business as he might have performed prior to the acquisition.
The court also found that Schmertzler exercised substantial responsibilities, both before and after the acquisition, in both administration and investment banking. Upon those findings, the court concluded that Schmertzler’s anticipated activity with Morgan Stanley would amount to a breach.
In granting the preliminary injunction, the court held that Shearson had no adequate remedy at law. The monetary damages would be difficult to calculate and the damage may *233indeed be irreparable. The court foresaw the possibility of raiding by competitors of other covenanting Lehman personnel.
In deciding that the injunction similarly bind Morgan Stanley, the court stated that it would be ineffectual and inconsistent to enjoin Schmertzler from transferring to Morgan Stanley that which he had already sold to Shearson while not preventing Morgan Stanley from receiving the benefits wrongly transferred.
The order granting the preliminary injunction enjoined Schmertzler within a 90-mile radius of Two World Trade Center, New York City, from engaging in activities or services of the type over which he "had substantial responsibilities” during his employment by Shearson or Lehman, including investment banking services for or on behalf of any competitor of Shearson including Morgan Stanley.
I agree with these findings and conclusions of Special Term and, therefore, would affirm,
In order to establish its entitlement to a preliminary injunction, a plaintiff need only establish a likelihood of success on the merits, irreparable harm, and a balancing of the equities in its favor. (Grant Co. v Srogi, 52 NY2d 496, 517.)
A plaintiff need not demonstrate that it is certain to ultimately prevail, but simply a likelihood of success on the merits. (Parkmed Co. v Pro-Life Counselling, 91 AD2d 551, 553.) This standard was met by the plaintiff herein. Purchasing Assoc. v Weitz (13 NY2d 267) does not impose any more stringent standard for granting preliminary injunctions in cases concerning noncompetition covenants. The court, in Weitz, was reviewing the entry of a permanent injunction ordered after a full hearing on the merits.
In addition, the material facts underlying this litigation are not subject to material dispute.
Unlike the typical acquisition, in which the value acquired consists of tangible assets such as real estate and personal property, the only truly significant asset purchased by Shear-son was Lehman Brothers’ good will, i.e., the expertise of its personnel and the relationships they had developed with clients. It is mostly this good will for which the Lehman Brothers stockholders including Schmertzler received $317 million, and for which the noncompetition agreement was formulated.
Covenants not to compete, executed in connection with *234transactions such as the merger herein, where good will is an element of the value conveyed, have been held to be enforceable as long as they are reasonably necessary to protect the good will being acquired and not unnecessarily oppressive to the promissor. (See, e.g., Mohawk Maintenance Co. v Kessler, 52 NY2d 276, 283-284; Meteor Indus. v Metalloy Indus., 104 AD2d 440, 441; Note, Economic and Critical Analyses of the Law of Covenants Not to Compete, 72 Geo LJ 1425, 1426-1427 [1984].)
As found by Special Term, the essence of the transaction here was the purchase of Lehman Brothers’ good will, the noncompetition agreement was necessary to protect that good will, and the agreement was not unnecessarily oppressive in its terms.
Simply because Schmertzler was not a controlling stockholder in Lehman Brothers does not mandate a finding that his noncompetition agreement was not ancillary to the sale of a business. Here, no single managing director of Lehman Brothers held a controlling number of the company’s shares; indeed, no such stockholder held as much as 4.5% of Lehman Brothers stock and the vast majority owned no more than 2%.
It has been recognized that a minority stockholder-employee has a saleable interest in the good will of the corporation, which interest may be purchased and protected by a covenant not to compete. (Berman v Reed, Roberts Assoc., NYLJ, Sept. 2, 1976, p 8, col 2 [Sup Ct, Nassau County], affd 58 AD2d 821 [25% stockholder]; Lampert Agency v Barnett, NYLJ, Oct. 12, 1972, p 17, col 6 [Sup Ct, NY County] [10% stockholder].)
Purchasing Assoc. v Weitz (supra) is not to the contrary. In Weitz, the Court of Appeals simply held that a noncompetition covenant could not be deemed ancillary to the sale of a business where the "business” allegedly conveyed had recently been created, had no good will, no customers, no going concern value, and did not engage in the activities prohibited by the covenant. None of this is true under the circumstances herein.
The finding by Special Term that the covenant not to compete was ancillary to the sale of the business was supported by the undisputed facts in the record. Schmertzler participated on a daily basis in the negotiation process. He examined virtually every document pertaining to the transaction. Similarly, Schmertzler was obviously a "rising star” at Lehman Brothers, which granted him more status and impor*235tance than his stock ownership would indicate. His decision to sign the noncompetition agreement in order to advance his career does not render it a product of coercion. His meteoric career underlines his sophistication and knowledge of the options he possessed at the time he sold his stock and agreed to sign the noncompetition agreement.
The covenant not to compete prohibited Schmertzler from engaging in any business, for a competitor of Shearson, for which he had "substantial responsibilities” during the course of his employment with either Lehman Brothers or with Shearson. Paragraph 1 of the noncompetition agreement provides in pertinent part:
"Covenant Not to Compete. For a period commencing upon the consummation of the transactions contemplated by the Agreement for Purchase of Stock and ending on the third anniversary of the Closing Date, the Certain Stockholder will not, directly or indirectly, as a sole proprietor, member of a partnership, or stockholder, investor, officer or director of a corporation, or as an employee, agent, associate or consultant of any person, firm or corporation other than Lehman Brothers Kuhn Loeb Holding Co., Inc., or a successor corporation CLBKL Holding’) or one of its Subsidiaries * * *
"(c) Engage in any business within a 90 mile radius of the metropolitan area in which the Certain Stockholder conducted substantial business for the twelve month period preceding the Closing Date which is in substantial competition with any substantial business conducted in such area, at the time such engagement is commenced, by LBKL Holding or its Subsidiaries and in respect of which the Certain Stockholder had substantial responsibilities during the term of his employment by LBKL Holding and its Subsidiaries”. (Emphasis added.)
Defendants assert that there are ambiguities in the noncom-petition agreement. They contend that the noncompetition agreement does not pertain to postacquisition activities. They concede that Schmertzler exercised substantial responsibilities in investment banking while at Lehman Brothers’ successor, Shearson. While there, Schmertzler was in charge of Shear-son’s International Investment Banking Division, a position in which he earned over $500,000 a year. Defendants maintain, however, that those duties cannot be considered in determining the scope of the noncompetition agreement’s prohibitions.
Defendants also assert that the term "substantial responsibilities” means only those duties dischargeable by a managing *236director of Lehman Brothers and they would ignore entirely Schmertzler’s responsibilities as an investment banking associate of Lehman Brothers. As second-in-command of Lehman Brothers’ International Investment Banking Department, Schmertzler assigned and supervised the work of the other associates in the department, worked on over-all planning and strategy, served as liaison with other departments at Lehman Brothers, and discharged senior-management level responsibility on specific transactions, meeting with clients and third parties to negotiate terms of the transactions. As compensation for these responsibilities, Schmertzler earned $126,000 in 1981, $189,000 in 1982 and $341,357.80 in 1983.
In support of their contentions, the defendants offered parol evidence on both of these issues. The majority cites this parol evidence as supporting defendants’ interpretation of "substantial responsibility”. Parol evidence purporting to interpret the language of an integrated contract such as the noncompetition agreement is admissible if the contract is ambiguous. "The rule in this State is well settled that the construction of a plain and unambiguous contract is for the court to pass on, and that circumstances extrinsic to the agreement will not be considered when the intention of the parties can be gathered from the instrument itself.” (West, Weir & Bartel v Carter Paint Co., 25 NY2d 535, 540, remittitur amended 26 NY2d 969.) The court must find, as a matter of law, that contractual language is ambiguous before considering extrinsic evidence. Even then, the evidence may not be used to vary or contradict the language of the contract, but only to interpret it so as to resolve the ambiguity. (See, Sutton v East Riv. Sav. Bank, 55 NY2d 550.) No such ambiguity exists in the noncompetition agreement.
Neither contention by defendants addresses the evidence submitted by Shearson that Schmertzler performed substantial investment banking services for Lehman Brothers after he was made a managing director of Lehman Brothers and before its acquisition by Shears on. The unrebutted evidence is that Schmertzler engaged during this period in client meetings regarding mergers and acquisitions and that he acted as an investment banker in connection with negotiating and structuring the Shearson acquisition of Lehman Brothers.
Moreover, the noncompetition agreement expressly defines the term "LBKL Holding” to include "Lehman Brothers Kuhn Loeb Holding Co., Inc. or a successor corporation” (emphasis added) and then goes on to restrict the persons entering into *237the agreement, including Schmertzler, from performing for a competitor of LBKL Holding services for which he had substantial responsibilities during the term of his employment by LBKL Holding. Therefore, the restrictions set forth in section 1 (c) apply to services in competition with those performed for Lehman Brothers or its successor corporations. At the time the agreement was executed, the only successor corporation in the contemplation of the parties was Shearson.
Moreover, this definition of "LBKL Holding” to include successor corporations is used consistently throughout the agreement. Section 1 (a) of the noncompetition agreement prohibits parties to the agreement from soliciting business from, inter alia, any clients or prospective clients of LBKL Holding for anyone other than LBKL Holding or its subsidiaries. Section 1 (b) prohibits the soliciting of any employee of "LBKL Holding”. If successor corporations are read out of the definition of "LBKL Holding”, the agreement would only prohibit the solicitation of clients (and "prospective” clients) or employees of Lehman Brothers, which would not exist after the merger and would have neither clients nor employees. Similarly, the signers of the agreement would be entirely free to solicit Shearson customers and Shearson employees after the merger. This interpretation would give Shearson none of the protection for which it paid.
Defendants contend that the noncompetition agreement should not be treated as a covenant in connection with the sale of a business, since any activities which Schmertzler undertook for Shearson were as an employee and not a stockholder and, therefore, did not involve the good will Shearson purchased from Lehman Brothers’ stockholders. This appears to be a gross exaggeration of the distinction between covenants not to compete in ordinary employment contracts and such covenants made in connection with the sale of the business.
The noncompetition agreement, by its terms, restricts the activities which Schmertzler could undertake in competition with those duties he performed for either Lehman Brothers or Shearson.
Defendants assert also that "substantial responsibilities” excludes all duties performed by associates. However, if the parties had intended to limit "substantial responsibilities” to those duties performed by a managing director, they could simply have said so. Special Term correctly observed that *238nothing in the documents leads to the conclusion that a special definition of "substantial responsibilities” was intended, but rather that the parties intended that it be given ordinary meaning according to standard English usage.
Instead of identifying language in the noncompetition agreement to support their contention that the phrase "substantial responsibilities” should be given any meaning other than its ordinary one, defendants rely upon parol evidence which conclusorily asserts that the noncompetition agreement simply does not mean what it says, and that, in writing "substantial responsibilities”, the parties really meant duties which could only be performed by a managing director. Any such reference to a supposed intent, unapparent in the agreement itself, is barred by the parol evidence rule. Under the guise of contract construction, a court may not create a wholly new contract. (Goodstein Constr. Corp. v City of New York, 111 AD2d 49, 52.)
The plaintiff established that it would suffer irreparable injury absent a grant of the preliminary injunction. The failure to require Schmertzler to abide by his promise might jeopardize the entire acquisition, since it is alleged that if Schmertzler’s noncompetition agreement is not enforced, other covenanting Lehman Brothers personnel may be tempted to violate their obligation not to compete.
The injunction is proper, however, even absent the real threat that others will follow Schmertzler’s example. As Special Term found, any monetary damage resulting from Schmertzler’s breach and the loss of good will by plaintiff will be difficult, if not impossible, to calculate.
Furthermore, Schmertzler specifically agreed in section 3 of the noncompetition agreement that: "If there is a breach or threatened breach of the provisions of this Agreement, [Shear-son] shall be entitled to an injunction restraining [Schmertzler] from such breach, if an injunction is permitted by applicable law. Nothing herein shall be construed as prohibiting [Shearson] from pursuing any other remedies for such breach or threatened breach.”
The Court of Appeals has stated that if it appears that the performance of the covenant was intended by the parties, and not merely the payment of damages in case of a breach, the covenant not to compete will be enforced. (Diamond Match Co. v Roeber, 106 NY 473, 486.)
Defendants have suffered no unfair burden as a result of the *239preliminary injunction. They simply have been required to delay the employment relationship which was commenced in clear violation of Shearson’s rights. With respect to Morgan Stanley, the injunction presents no hardship since it is in the same position as it was before Schmertzler left Shearson. With respect to Schmertzler, he has accumulated considerable sums as a result of the purchase by Shearson of his ownership interest in Lehman Brothers. He also received substantial compensation as one of Lehman Brothers’ and Shearson’s employees. His decision to leave Shearson and work for Morgan Stanley was entirely his own. Indeed, the noncompetition agreement had an escape clause that specifically permitted Schmertzler to leave Shearson for "good reason”. In such an event, Schmertzler would have been free of the constraints of the noncompetition agreement unless Shearson elected to keep them operable, in which case it would have been obliged to pay Schmertzler a yearly stipend of $225,000 through the remaining term of the agreement.
Unless he is enjoined, Schmertzler, as Special Term recognized, would be permitted to effectively sell his skills twice, first to Shearson, and second, to Morgan Stanley.
It has been brought to the attention of the court that, since the argument of this appeal, Mr. Schmertzler may have been promoted to partner in Morgan Stanley. If this has taken place, in spite of the restrictive covenant, Schmertzler does not appear to have been damaged by the injunctive relief. He may well be the Houdini of the American business system, apparently having successfully slipped out of what have been described by the press as the "golden handcuffs”.
Kupferman, J. P., Sullivan and Kassal, JJ., concur with Sandler, J.; Asch, J., dissents in an opinion.
Order, Supreme Court, New York County, entered on October 8, 1985, reversed, on the law, on the facts, and in the exercise of discretion, to deny plaintiff’s motion for a preliminary injunction.