EMPLOYEE NON-COMPETITION & CONFIDENTIALITY AGREEMENT
(Kentucky)
[// GUIDANCE: Replace all bracketed, ALL-CAP placeholders before issuing for signature.]
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
This Employee Non-Competition & Confidentiality Agreement (this “Agreement”) is entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between [EMPLOYER LEGAL NAME], a [STATE OF INCORP.] [ENTITY TYPE] having its principal place of business at [ADDRESS] (“Employer”), and [EMPLOYEE LEGAL NAME], an individual residing at [ADDRESS] (“Employee”). Employer and Employee are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
1.1 Recitals
A. Employer is engaged in the business of [BRIEF DESCRIPTION OF BUSINESS ACTIVITIES] (the “Business”).
B. Employee is being employed, or continues to be employed, by Employer in the position of [TITLE] and will obtain access to Employer’s Confidential Information (as defined below) and goodwill.
C. As a condition of (i) Employee’s initial employment or (ii) continued employment coupled with additional consideration described below, Employer requires Employee to enter into this Agreement to protect Employer’s legitimate business interests.
D. Employee acknowledges that the restrictions contained herein are reasonable and necessary to protect those interests and that Employee’s execution of this Agreement is a material inducement for Employer to employ or continue to employ Employee.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for 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, the following capitalized terms shall have the meanings set forth below:
“Affiliate” – Any entity that directly or indirectly controls, is controlled by, or is under common control with Employer.
“Cause” – [DEFINE SPECIFIC CAUSE TRIGGERS OR INCORPORATE BY REFERENCE TO EMPLOYMENT AGREEMENT OR HANDBOOK.]
“Competing Business” – Any person or entity that engages in the Restricted Activities within the Restricted Territory.
“Confidential Information” – All non-public information of Employer or its Affiliates, whether written, oral, electronic, or in any other form, that provides or could provide a competitive advantage or is proprietary, including but not limited to trade secrets, customer lists, pricing, marketing plans, software, inventions, financial data, and personnel information.
“Material Contact” – Contact in which Employee dealt with, supervised, or had responsibility for a customer, vendor, or prospect; or learned Confidential Information about same, during the last [X] years of employment.
“Restricted Activities” – The marketing, sale, licensing, servicing, or development of products or services that are competitive with or similar to the Business as conducted or actively planned by Employer during the Look-Back Period.
“Restricted Period” – The period beginning on the Effective Date and continuing until [X] months following the Termination Date.
“Restricted Territory” – [SPECIFIC GEOGRAPHIC AREA: e.g., a 50-mile radius of any office where Employee worked or had responsibility, the Commonwealth of Kentucky, and any other state in which Employer conducted the Business during the Look-Back Period].
“Termination Date” – The date on which Employee’s employment with Employer terminates for any reason.
“Look-Back Period” – The [12/24]-month period preceding the Termination Date.
[// GUIDANCE: Adjust “Restricted Period” and “Restricted Territory” to remain reasonable under Kentucky law; overbroad restraints risk unenforceability.]
3. OPERATIVE PROVISIONS
3.1 Employment & Consideration
(a) If executed prior to Employee’s first day of employment, initial employment constitutes sufficient consideration.
(b) If executed after employment has commenced, Employer shall provide the following additional, contemporaneous consideration, acknowledged by Employee as adequate and fair: [e.g., signing bonus of $_, promotion to _, grant of ____ equity units].
3.2 Confidentiality
Employee shall hold all Confidential Information in strict confidence, use it solely for Employer’s benefit, and not disclose it to any third party except as authorized in writing by Employer. Employee’s obligations shall survive indefinitely with respect to Trade Secrets and for [X] years after disclosure with respect to other Confidential Information.
3.3 Return of Property
Upon the earlier of (i) Employer’s request or (ii) Termination Date, Employee shall promptly return to Employer all tangible and electronic property, documents, and media containing Confidential Information.
3.4 Work-Product Assignment
Employee hereby assigns to Employer all right, title, and interest in any invention, discovery, work of authorship, or other intellectual property conceived or developed, in whole or in part, during employment that relates to the Business or makes use of Employer resources.
4. REPRESENTATIONS & WARRANTIES
4.1 Mutual Authority. Each Party has full power and authority to enter into and perform this Agreement.
4.2 Non-Contravention. Employee represents that execution and performance of this Agreement do not violate any other agreement or legal duty owed by Employee.
4.3 Accuracy of Information. Employee warrants that all information provided to Employer regarding Employee’s prior restrictive covenants (if any) is complete and accurate.
5. COVENANTS & RESTRICTIONS
5.1 Non-Competition
During the Restricted Period, Employee shall not, directly or indirectly, for Employee’s own benefit or on behalf of any Competing Business, engage in Restricted Activities within the Restricted Territory.
5.2 Non-Solicitation of Customers/Prospects
During the Restricted Period, Employee shall not solicit, divert, or attempt to divert any customer or prospective customer of Employer with whom Employee had Material Contact, for the purpose of providing products or services that compete with the Business.
5.3 Non-Solicitation of Employees
During the Restricted Period, Employee shall not induce or attempt to induce any employee, consultant, or agent of Employer to terminate or reduce his or her relationship with Employer.
5.4 Reasonableness & Reformation
Employee acknowledges that the duration, geographic scope, and scope of activity of the restrictions are reasonable. Nonetheless, if any portion is held unenforceable, a court of competent jurisdiction may modify the restriction to the maximum extent permissible under applicable law.
[// GUIDANCE: Kentucky courts routinely “blue-pencil” overbroad covenants; including an explicit reformation clause enhances enforceability.]
6. DEFAULT & REMEDIES
6.1 Events of Default
Each of the following constitutes a default:
a) Employee’s breach of Sections 3.2–3.4 or Article 5;
b) Employee’s material misrepresentation under Section 4.3; or
c) Employee’s failure to return Employer property per Section 3.3.
6.2 Notice & Cure
Employer shall provide written notice specifying the nature of any alleged breach. Where the breach is curable, Employee shall have [5] business days to cure before default is final.
6.3 Injunctive Relief
Employee agrees that monetary damages alone are inadequate and that Employer is entitled to immediate injunctive relief (temporary, preliminary, and permanent) in any court of competent jurisdiction to prevent or restrain any breach or threatened breach.
6.4 Cumulative Remedies
Remedies under this Agreement are cumulative and in addition to any other rights or remedies available at law or in equity.
6.5 Attorneys’ Fees
In any action to enforce this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs.
7. RISK ALLOCATION
7.1 Indemnification by Employee
Employee shall indemnify, defend, and hold Employer and its Affiliates, and their respective officers, directors, employees, and agents, harmless from and against any and all losses, damages, liabilities, 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 limitation of Employer’s remedies is provided. Employee expressly acknowledges that Section 7.1 affords Employer full recourse for breach.
[// GUIDANCE: “liability_caps: no_cap” per metadata.]
7.3 Insurance
[OPTIONAL – If Employee is an executive or salesperson with significant external activity, consider requiring proof of professional liability or other insurance.]
7.4 Force Majeure
Employee’s restrictive covenants are personal and not excused by force majeure events; however, Employer’s obligations (other than payment of earned wages) shall be suspended to the extent performance is prevented by an event beyond Employer’s reasonable control.
8. DISPUTE RESOLUTION
8.1 Governing Law
This Agreement and any dispute hereunder shall be governed by, and construed in accordance with, the laws of the Commonwealth of Kentucky, without regard to conflict-of-law rules.
8.2 Forum Selection
Subject to Section 6.3 (Injunctive Relief) and Section 8.3 (Arbitration), the Parties consent to exclusive jurisdiction and venue in the state courts located in [COUNTY], Kentucky.
8.3 Arbitration
[OPTION 1 – INSERT if arbitration elected]
Any dispute, claim, or controversy arising out of or relating to this Agreement or the breach thereof shall be resolved by binding arbitration administered by [ARBITRATION BODY] pursuant to its employment arbitration rules. The arbitrator shall have authority to award all remedies available at law or in equity (including injunctive relief) and shall issue a reasoned written decision. Judgment on the award may be entered in any court of competent jurisdiction.
[OPTION 2 – DELETE this Section if arbitration not elected.]
8.4 Jury Trial Waiver
[OPTIONAL – Insert only if elected and permissible under KY law.]
EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING FROM OR RELATING TO THIS AGREEMENT.
8.5 Equitable Relief Notwithstanding Arbitration
Nothing in this Article 8 shall limit Employer’s right to seek provisional or emergency equitable relief in a court of competent jurisdiction to enforce the restrictive covenants herein.
9. GENERAL PROVISIONS
9.1 Amendment & Waiver. No amendment to this Agreement shall be effective unless in writing and signed by both Parties. No waiver of any breach shall be deemed a waiver of any subsequent breach.
9.2 Assignment. This Agreement is personal to Employee and may not be assigned by Employee. Employer may assign this Agreement to an Affiliate or successor in interest, including by merger or sale of substantially all assets.
9.3 Successors & Assigns. This Agreement shall inure to the benefit of and be binding upon the Parties and their permitted successors and assigns.
9.4 Severability. If any provision is held invalid, illegal, or unenforceable, the remaining provisions shall remain in full force, and the invalid provision shall be modified to the minimum extent necessary to render it enforceable.
9.5 Integration. This Agreement constitutes the entire understanding between the Parties with respect to the subject matter and supersedes all prior oral or written agreements.
9.6 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts (including via electronic signature and pdf), each of which is deemed an original, and all of which together constitute one document.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the Effective Date.
| Employer | Employee |
|---|---|
| [EMPLOYER LEGAL NAME] | [EMPLOYEE LEGAL NAME] |
| By: _________ | _____ |
| Name: [SIGNATORY NAME] | |
| Title: [TITLE] | |
| Date: __ | Date: __ |
[// GUIDANCE: Kentucky does not mandate notarization or witnesses for non-compete agreements; obtain notarization if additional evidentiary assurance is desired.]