District of Columbia Employee Non-Competition Agreement
[// GUIDANCE: This template is drafted to comply with the District of Columbia (“D.C.”) non-compete statutory scheme in effect as of the date of drafting. Practitioners should confirm that the employee is eligible for a non-compete (e.g., compensation exceeds the current statutory threshold and no statutory exclusion applies) and that all statutory notice, timing, and disclosure requirements are satisfied prior to execution.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Operative Provisions
- Representations & Warranties
- Covenants & Restrictions
- Default & Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block
1. DOCUMENT HEADER
NON-COMPETITION AGREEMENT (the “Agreement”) made and entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
• [EMPLOYER LEGAL NAME], a [STATE OF FORMATION] [ENTITY TYPE] with its principal place of business at [ADDRESS] (“Employer”); and
• [EMPLOYEE NAME], an individual residing at [ADDRESS] (“Employee”).
RECITALS
A. Employer is engaged in the business of [GENERAL DESCRIPTION OF BUSINESS] (the “Business”).
B. Employee will occupy a position that provides access to Employer’s Confidential Information and goodwill, such that post-employment competition within certain limits would materially and adversely affect Employer.
C. In consideration of the mutual promises herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows.
2. DEFINITIONS
For purposes of this Agreement, capitalized terms have the meanings set forth below. Defined terms appear alphabetically for ease of reference.
“Cause” means [DEFINE CAUSE OR CROSS-REFERENCE EMPLOYMENT AGREEMENT].
“Competitive Services” means activities that are the same as or materially similar to the services Employee performed for Employer during the last [X] months of employment, including without limitation [LIST KEY FUNCTIONS].
“Confidential Information” means all non-public information disclosed or made available to Employee in any form that is proprietary to Employer, including trade secrets, customer lists, pricing, business strategies, and technical data, whether or not marked confidential.
“Covered Customers” means any customer or prospective customer of Employer with whom Employee had Material Contact during the look-back period of [X] months preceding the Termination Date.
“Geographic Territory” means the District of Columbia and any state, province, or country in which (i) Employee performed material services for Employer, or (ii) Employer conducted material operations and Employee had material responsibility, during the [X] months preceding the Termination Date. [// GUIDANCE: Narrow the territory to align with actual scope of Employee’s duties; D.C. law requires geographic scope no broader than necessary to protect legitimate business interests.]
“Material Contact” means direct interaction between Employee and a customer, supplier, or business partner in furtherance of Employer’s Business.
“Non-Compete Period” means the period beginning on the Termination Date and ending [NUMBER ≤ 365] days thereafter. [// GUIDANCE: Current D.C. law caps non-compete duration at 365 days (730 for qualifying medical specialists).]
“Termination Date” means the date Employee’s employment with Employer terminates for any reason.
3. OPERATIVE PROVISIONS
3.1 Consideration. Employee acknowledges that (a) continued employment and eligibility for [BONUS/INCENTIVE COMPENSATION/EQUITY] constitute good and valuable consideration; and (b) Employer delivered this Agreement to Employee at least fourteen (14) calendar days before the earlier of the Employee’s start date or the date this Agreement is to become effective, thereby satisfying applicable statutory notice requirements.
3.2 Employment-At-Will. Nothing herein alters the at-will nature of Employee’s employment unless a separate, written employment contract provides otherwise.
3.3 Conditions Precedent. This Agreement is conditioned upon (a) Employee’s execution on or before [DATE], and (b) Employer’s verification that Employee’s total compensation meets the statutory threshold for enforceability under D.C. non-compete law. Failure of either condition renders this Agreement void ab initio.
4. REPRESENTATIONS & WARRANTIES
4.1 Mutual Authority. Each party represents that it has full power, right, and authority to enter into and perform this Agreement.
4.2 Employee’s Existing Obligations. Employee represents that execution of this Agreement will not breach any obligation owed to any third party, and Employee has disclosed to Employer any restrictive covenants binding Employee.
4.3 Survival. The representations and warranties in this Section survive termination of employment and the Agreement.
5. COVENANTS & RESTRICTIONS
5.1 Non-Competition. During the Non-Compete Period, Employee shall not, within the Geographic Territory, directly or indirectly engage in Competitive Services on behalf of any Competing Business, whether as owner, employee, consultant, contractor, investor, or otherwise.
5.2 Non-Solicitation of Customers. During the Non-Compete Period, Employee shall not, for any Competing Business, solicit or attempt to solicit Covered Customers for the purpose of providing Competitive Services.
5.3 Non-Solicitation of Employees. For a period of [12] months following the Termination Date, Employee shall not solicit or recruit any then-current employee of Employer with whom Employee worked closely.
5.4 Confidentiality. Employee shall hold Confidential Information in strict confidence and use it solely for Employer’s benefit both during and after employment.
5.5 Return of Property. No later than the Termination Date, Employee shall return all documents, data, and other property belonging to Employer.
5.6 Tolling. If Employee violates any covenant in this Section, the restricted period shall be tolled for the duration of the violation.
5.7 Notice of Future Employment. During the Non-Compete Period, Employee shall provide Employer with written notice of any new employment or engagement, including the identity of the new employer, job title, and description of duties.
6. DEFAULT & REMEDIES
6.1 Events of Default. Any breach of Section 5 constitutes a default.
6.2 Notice and Cure. Employer may provide written notice of default. If the default is curable, Employee shall have five (5) calendar days to cure. Breaches involving disclosure of trade secrets or actual competition are deemed non-curable.
6.3 Injunctive Relief. Employee acknowledges that a breach will cause irreparable harm for which monetary damages are inadequate. Employer is entitled to immediate temporary, preliminary, and permanent injunctive relief, without the necessity of posting bond, in any court of competent jurisdiction.
6.4 Additional Remedies. Employer may seek (a) compensatory damages, (b) disgorgement of profits, (c) attorneys’ fees and costs, and (d) any other remedies available at law or equity.
7. RISK ALLOCATION
7.1 Indemnification by Employee. Employee shall indemnify, defend, and hold harmless Employer and its affiliates, and their respective officers, directors, employees, and agents, from and against any and all losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising from or relating to Employee’s breach of this Agreement.
7.2 No Limitation of Liability. No provision herein limits either party’s liability for (a) willful misconduct, (b) breach of Section 5, or (c) indemnification obligations.
7.3 Force Majeure. Neither party shall be liable for failure to perform obligations (other than payment or confidentiality) where such failure results from causes beyond its reasonable control, including acts of God, war, terrorism, riots, or governmental action, provided that the affected party gives prompt notice and uses commercially reasonable efforts to resume performance.
8. DISPUTE RESOLUTION
8.1 Governing Law. This Agreement and any dispute arising hereunder shall be governed by, and construed in accordance with, the laws of the District of Columbia, without regard to its conflict-of-laws rules.
8.2 Forum Selection. The parties irrevocably submit to the exclusive jurisdiction of the courts located in the District of Columbia.
8.3 Arbitration. [OPTIONAL - DELETE IF INAPPLICABLE] Any dispute, claim, or controversy arising out of or relating to this Agreement shall, at Employer’s election, be resolved by confidential, final, and binding arbitration administered by [ARBITRATION PROVIDER] in accordance with its rules. Judgment on the award may be entered in any court of competent jurisdiction. Nothing herein precludes Employer from seeking injunctive relief in court prior to or during arbitration.
8.4 Jury Trial Waiver. [OPTIONAL - DELETE IF INAPPLICABLE] EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
8.5 Equitable Relief Preservation. The parties agree that the availability of arbitration or any other remedy does not limit Employer’s right to obtain injunctive or other equitable relief under Section 6.3.
9. GENERAL PROVISIONS
9.1 Amendment; Waiver. No amendment or waiver of any provision shall be effective unless in writing and signed by both parties. A waiver on one occasion is not a waiver of any subsequent breach.
9.2 Assignment. Employer may assign this Agreement to a successor in interest. Employee may not assign or delegate any rights or obligations without Employer’s prior written consent.
9.3 Successors and Assigns. This Agreement binds and benefits the parties and their respective successors and permitted assigns.
9.4 Severability; Reformation. If any provision is held unenforceable, a court may modify the provision to the minimum extent necessary to render it enforceable and, as so modified, the provision shall be enforced, while the remaining provisions continue in full force.
9.5 Integration. This Agreement, together with any proprietary information, invention assignment, or employment agreements executed contemporaneously herewith, constitutes the entire agreement between the parties regarding the subject matter and supersedes all prior agreements, oral or written.
9.6 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which is deemed an original, and all of which together constitute one instrument. Facsimile, PDF, and electronic signatures (including via electronic signature platforms) are deemed original signatures for all purposes.
9.7 Headings. Section headings are for convenience only and do not affect interpretation.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the parties have executed this Non-Competition Agreement as of the Effective Date.
Employer:
[EMPLOYER LEGAL NAME]
By: ____
Name: ____
Title: _____
Date: _________
Employee:
[EMPLOYEE NAME]
Date: _____
[NOTARY ACKNOWLEDGMENT IF REQUIRED]
[// GUIDANCE: Attach any statutorily required notices verbatim as a separate exhibit if mandated by current D.C. law. Maintain evidence that the Agreement was provided to Employee at least 14 days before the earlier of employment commencement or Agreement effective date. Verify compensation threshold and exemption status before execution. Customize Geographic Territory, Non-Compete Period, and other bracketed placeholders to reflect the narrowest scope necessary to protect legitimate business interests, enhancing enforceability under D.C. standards.]