NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
(Kansas – Employee Form)
[// GUIDANCE: This template is drafted to comply with current Kansas common-law standards for employee restrictive covenants (reasonableness in time, geography, and scope; blue-pencil authority) and Kansas Uniform Trade Secrets Act protections, K.S.A. 60-3320 et seq. Bracketed items must be completed or deleted before use.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Consideration & At-Will Employment Statement
- Covenants & Restrictions
4.1. Non-Competition
4.2. Non-Solicitation of Customers
4.3. Non-Interference with Employees & Contractors
4.4. Confidentiality
4.5. Return of Company Property - Representations & Warranties
- Default & Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block
1. DOCUMENT HEADER
This Non-Competition and Confidentiality Agreement (“Agreement”) is entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
• [COMPANY NAME], a [STATE OF ORGANIZATION] [ENTITY TYPE] with its principal place of business at [COMPANY ADDRESS] (“Company”), and
• [EMPLOYEE NAME], an individual residing at [EMPLOYEE ADDRESS] (“Employee”).
Recitals
A. Company is engaged in the business of [DESCRIBE BUSINESS] (the “Business”).
B. In the course of Employee’s employment, Employee will receive specialized training and have access to Company’s Confidential Information (as defined below).
C. Company desires to protect its legitimate business interests, and Employee desires employment or continued employment with Company, subject to the covenants and terms set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein and for other good and valuable consideration, the sufficiency of which are hereby acknowledged, the parties agree as follows:
2. DEFINITIONS
For purposes of this Agreement, capitalized terms have the meanings set forth below. Terms defined in the singular include the plural and vice versa.
“Affiliate” – Any entity controlling, controlled by, or under common control with Company.
“Competing Business” – Any person or entity that, within the Restricted Territory, engages in the Business or any portion thereof that is materially competitive with Company during the Restricted Period.
“Confidential Information” – All non-public, proprietary, or trade secret information of Company or its Affiliates, whether oral, written, electronic, or in any other form, including but not limited to financial data, customer lists, pricing, product designs, marketing strategies, software, source code, inventions, know-how, and any information protected under the Kansas Uniform Trade Secrets Act, K.S.A. 60-3320 et seq. Confidential Information excludes information that (i) is or becomes publicly available without breach of this Agreement, (ii) was lawfully obtained by Employee from a third party without restriction, or (iii) is independently developed by Employee without use of Confidential Information.
“Restricted Period” – The period beginning on the Employee’s last day of employment with Company (for any reason) and continuing for [TWELVE (12) / EIGHTEEN (18) / TWENTY-FOUR (24)] months thereafter.
“Restricted Territory” – [DESCRIBE GEOGRAPHIC SCOPE – e.g., “each county within the State of Kansas in which Company has conducted the Business during the twelve (12) months preceding the Termination Date,” OR “within a radius of ___ miles from any office or facility at which Employee regularly worked or which Employee had material responsibilities”].
[// GUIDANCE: Kansas courts require geographic limitations to be reasonable and tied to Company’s actual market.]
“Termination Date” – The effective date on which Employee’s employment with Company ends for any reason.
3. CONSIDERATION & AT-WILL EMPLOYMENT STATEMENT
3.1 Consideration.
(a) Initial Employment. If Employee signs this Agreement prior to commencing employment, the offer of employment, together with access to Confidential Information and specialized training, constitutes sufficient consideration under Kansas law.
(b) Continued Employment / Post-Commencement Execution. If Employee signs this Agreement after employment has commenced, Employee acknowledges that the additional consideration of (i) [CASH BONUS AMOUNT], (ii) [STOCK OPTION / RAISE / PROMOTION], and (iii) continued employment and access to Confidential Information are each adequate and independent consideration for Employee’s covenants herein.
3.2 At-Will Status. Nothing in this Agreement alters the at-will nature of Employee’s employment, which may be terminated by either party at any time, with or without cause or notice, subject only to applicable law.
4. COVENANTS & RESTRICTIONS
4.1 Non-Competition.
During the Restricted Period, Employee shall not, directly or indirectly, within the Restricted Territory:
(a) perform the same or substantially similar duties to those performed for Company on behalf of a Competing Business;
(b) engage in the Business as an owner, partner, shareholder (other than passive ownership of <5% of a publicly traded company), member, consultant, employee, or otherwise; or
(c) assist any Competing Business in developing products or services that compete with the Business.
4.2 Non-Solicitation of Customers.
Employee shall not, during the Restricted Period, directly or indirectly solicit, divert, or appropriate any customer or prospective customer of Company with whom Employee had material contact in the twelve (12) months preceding the Termination Date for the purpose of providing products or services that are competitive with the Business.
4.3 Non-Interference with Employees & Contractors.
Employee shall not, during the Restricted Period, directly or indirectly recruit, hire, or encourage any employee or independent contractor of Company to leave Company or terminate such relationship.
4.4 Confidentiality.
Employee shall hold all Confidential Information in strict confidence both during and after employment and shall use such information solely for the benefit of Company. Disclosure is permitted only (i) with Company’s prior written consent, (ii) to the extent required by law (after providing prompt written notice to Company), or (iii) as protected under 18 U.S.C. § 1833(b) (whistleblower immunity).
4.5 Return of Company Property.
Upon termination of employment or earlier request, Employee shall promptly return to Company all documents, devices, data, and other property of Company, including any copies in Employee’s possession or control.
5. REPRESENTATIONS & WARRANTIES
5.1 Employee represents and warrants that:
(a) Employee is not bound by any restrictive covenant that would conflict with this Agreement;
(b) Employee has the full right and authority to enter into and perform this Agreement; and
(c) Employee’s execution of this Agreement will not violate any other agreement or legal obligation.
5.2 Survival. The representations and warranties in this Section 5 survive termination of employment and expiration of the Restricted Period.
6. DEFAULT & REMEDIES
6.1 Events of Default. Any breach or threatened breach of Section 4 constitutes a default.
6.2 Notice & Cure. Because of the immediate and irreparable harm that would result, no cure period is required prior to Company seeking injunctive relief; however, Company shall provide written notice of default as soon as practicable.
6.3 Primary Remedy – Injunctive Relief. Employee acknowledges that monetary damages would be inadequate and consents to the issuance of temporary, preliminary, and permanent injunctive relief by any court of competent jurisdiction to prevent or restrain any breach or threatened breach of this Agreement, without the necessity of posting bond (or, if required, upon posting bond not to exceed $1,000).
6.4 Additional Remedies. Company may also recover:
(a) actual damages, including lost profits;
(b) disgorgement of compensation or benefits received by Employee from any Competing Business resulting from the breach;
(c) reasonable attorneys’ fees and costs incurred in enforcing this Agreement; and
(d) extension of the Restricted Period by a period equal to the duration of any breach.
[// GUIDANCE: Kansas courts routinely allow tolling where equitable.]
7. RISK ALLOCATION
7.1 Indemnification by Employee. Employee shall indemnify, defend, and hold harmless Company, its Affiliates, and their respective directors, officers, employees, and agents from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to Employee’s breach of this Agreement.
7.2 Limitation of Liability. No contractual cap is imposed on Employee’s liability for breach of Section 4.
7.3 Insurance. [OPTIONAL - specify any insurance Employee must maintain, if applicable.]
7.4 Force Majeure. Neither party is liable for failure to perform obligations (other than payment or confidentiality obligations) to the extent performance is prevented by events beyond the party’s reasonable control, provided the affected party promptly notifies the other and resumes performance as soon as practicable.
8. DISPUTE RESOLUTION
8.1 Governing Law. This Agreement and any dispute arising hereunder are governed by the laws of the State of Kansas, without regard to its conflict-of-laws rules.
8.2 Forum Selection. Subject to Section 8.3, the parties irrevocably submit to the exclusive jurisdiction of the state courts located in [COUNTY], Kansas, and waive any objection based on forum non conveniens.
8.3 Optional Arbitration. [SELECT ONE]
☐ 8.3(a) Arbitration Elected. Any dispute (other than requests for injunctive relief pursuant to Section 6.3) shall be finally resolved by binding arbitration administered by the American Arbitration Association under its Employment Arbitration Rules in [CITY], Kansas. Judgment on the award may be entered in any court having jurisdiction.
☐ 8.3(b) Arbitration Not Elected. Section 8.3 intentionally omitted.
8.4 Optional Jury Waiver. [SELECT ONE]
☐ Jury Trial Waiver. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
☐ No Waiver. Jury waiver omitted.
8.5 Equitable Relief Not Precluded. Nothing in this Section 8 limits Company’s right to seek equitable relief in accordance with Section 6.
9. GENERAL PROVISIONS
9.1 Amendment & Waiver. This Agreement may be amended only by a written instrument signed by both parties. A waiver of any breach does not constitute a waiver of any other or subsequent breach.
9.2 Assignment. This Agreement is personal to Employee and may not be assigned by Employee. Company may assign this Agreement to any Affiliate or successor by merger, sale of substantially all assets, or otherwise.
9.3 Successors & Assigns. This Agreement binds and benefits the parties and their respective successors and permitted assigns.
9.4 Severability & Judicial Reformation. If any provision is held invalid or unenforceable, the remaining provisions remain in full force, and the invalid provision shall be reformed to the minimum extent necessary to render it enforceable to the fullest extent permitted under Kansas law (blue-pencil doctrine).
9.5 Integration. This Agreement constitutes the entire agreement between the parties with respect to the subject matter and supersedes all prior agreements or understandings, whether written or oral.
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. Signatures delivered by facsimile, .pdf, or electronic signature platform (e.g., DocuSign) are deemed original signatures for all purposes.
9.7 Notice. Any notice required or permitted under this Agreement must be in writing and delivered (i) personally, (ii) by certified mail, return receipt requested, (iii) by recognized overnight courier, or (iv) by email with confirmation of receipt, to the relevant address set forth in the Document Header (or such other address as a party may designate in writing). Notice is deemed given upon receipt.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
[COMPANY NAME]
By: ____
Name: ____
Title: _____
Date: _________
EMPLOYEE:
[EMPLOYEE NAME]
Date: _____
[// GUIDANCE: Notarization is not generally required for Kansas employee non-compete agreements, but may be added if desired. Corporate formalities (e.g., board approval) should be confirmed before execution.]
End of Document