NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
(Nebraska-Governing Law)
TABLE OF CONTENTS
- Definitions
- Consideration; Acknowledgments
- Operative Covenants
3.1 Non-Competition
3.2 Non-Solicitation of Protected Customers
3.3 Non-Solicitation of Employees / Contractors
3.4 Confidentiality
3.5 Return of Property - Representations & Warranties
- Default
- Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block
DOCUMENT HEADER
This Non-Competition and Confidentiality Agreement (the “Agreement”) is entered into and effective as of [EFFECTIVE DATE] (the “Effective Date”) by and between [EMPLOYER LEGAL NAME], a [STATE OF FORMATION] [ENTITY TYPE] having a principal place of business at [ADDRESS] (“Employer”), and [EMPLOYEE FULL LEGAL NAME], residing at [ADDRESS] (“Employee”).
RECITALS
A. Employer is engaged in the business of [DESCRIPTION OF BUSINESS] and has developed substantial goodwill, proprietary information, and customer relationships.
B. Employee will (or already does) occupy a position of trust and confidence and will have access to Confidential Information (as defined below).
C. Employer’s willingness to employ (or continue to employ) Employee, and to provide Employee with Confidential Information and specialized training, is expressly conditioned on Employee’s execution of and compliance with this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
[// GUIDANCE: Insert additional recitals if a mid-employment agreement—e.g., promotion, bonus, equity grant—to substantiate “new consideration,” a critical enforceability element under Nebraska law.]
1. DEFINITIONS
The following terms, when capitalized, have the meanings set forth below. Defined terms apply equally to their singular and plural forms.
“Affiliate” means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party.
“Business” means the business of [BRIEF DESCRIPTION] as conducted by Employer within the Geographic Area during the twelve (12) months preceding the termination of Employee’s employment.
“Confidential Information” means any non-public information of Employer disclosed to or learned by Employee, whether in written, oral, electronic, or other form, including without limitation trade secrets, financial data, marketing plans, customer lists, pricing information, software, inventions, and know-how.
“Geographic Area” means (a) the counties in Nebraska in which Employee performed services for Employer during the twenty-four (24) months preceding the Termination Date, plus (b) any additional territory expressly identified in Schedule 1 attached hereto.
“Protected Customers” means any customer, client, vendor, or prospective customer with whom Employee had material business contact on behalf of Employer during the twelve (12) months preceding the Termination Date.
“Restricted Period” means the period commencing on the Termination Date and continuing for [TIME PERIOD, NOT TO EXCEED TWO (2) YEARS] thereafter.
“Termination Date” means the date Employee’s employment with Employer ends for any reason.
[// GUIDANCE: Nebraska courts require that both time and territory be reasonable and tied to the employee’s actual sphere of influence. Populate Geographic Area and Restricted Period accordingly.]
2. CONSIDERATION; ACKNOWLEDGMENTS
2.1 Consideration.
(a) If executed at the inception of employment, the mutual obligations herein and the offer of employment constitute adequate consideration.
(b) If executed after employment has begun, Employer shall provide additional consideration consisting of [E.G., SIGN-ON BONUS | SALARY INCREASE | EQUITY GRANT] contemporaneously with Employee’s execution of this Agreement.
2.2 Employee Acknowledgments. Employee acknowledges that:
(a) Employee’s services are unique and extraordinary;
(b) Employer’s Confidential Information and goodwill are legitimate business interests entitled to protection;
(c) The restrictions contained in Section 3 are reasonable in duration, geographic reach, and scope; and
(d) Compliance will not preclude Employee from earning a livelihood in Employee’s chosen field.
3. OPERATIVE COVENANTS
3.1 Non-Competition.
During employment and throughout the Restricted Period, Employee shall not, within the Geographic Area, directly or indirectly own, manage, operate, control, or be employed by any Competing Business that offers products or services identical to or competitive with the Business.
[// GUIDANCE: To maximize enforceability under Nebraska law, narrowly define “Competing Business” and verify that the prohibition tracks Employee’s actual duties and customer contacts.]
3.2 Non-Solicitation of Protected Customers.
Employee shall not, during the Restricted Period, directly or indirectly solicit, divert, or attempt to solicit or divert any Protected Customer for the purpose of providing products or services that compete with the Business.
3.3 Non-Solicitation of Employees / Contractors.
Employee shall not, during the Restricted Period, directly or indirectly recruit, hire, or induce any employee or independent contractor of Employer to terminate or diminish his or her relationship with Employer.
3.4 Confidentiality.
Employee shall hold all Confidential Information in strict confidence and shall not use or disclose such information except as required in the course of employment with Employer.
3.5 Return of Property.
Upon the earlier of Employer’s request or the Termination Date, Employee shall immediately return to Employer all documents and property containing Confidential Information or otherwise belonging to Employer.
4. REPRESENTATIONS & WARRANTIES
4.1 Mutual Authority. Each party represents that it has full power and authority to enter into and perform this Agreement.
4.2 Non-Contravention. Employee represents that the execution and performance of this Agreement do not and will not violate any other agreement binding on Employee.
4.3 Survival. The representations and warranties in this Section 4 shall survive the termination of this Agreement for so long as any obligations remain outstanding.
5. DEFAULT
5.1 Events of Default. The following constitute an “Event of Default” by Employee:
(a) Breach of any covenant in Section 3 or Section 4;
(b) Material misrepresentation under Section 4;
(c) Failure to comply with a lawful written directive of Employer within ten (10) days after receipt.
5.2 Notice and Cure. Except for breaches of confidentiality or restrictive covenants (which are deemed incurable), Employer shall provide written notice of default and a ten (10) day opportunity to cure before exercising remedies.
6. REMEDIES
6.1 Injunctive Relief. Employee agrees that any breach will cause irreparable harm for which monetary damages are inadequate and consents to the entry of temporary, preliminary, and permanent injunctive relief in any Nebraska state court of competent jurisdiction without the necessity of posting bond.
6.2 Indemnification. Employee shall indemnify, defend, and hold Employer and its Affiliates harmless from and against all losses, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to Employee’s breach of this Agreement.
6.3 Additional Relief. Employer may recover actual, consequential, and incidental damages without limitation. No liability cap applies.
6.4 Cumulative Remedies. All rights and remedies are cumulative and in addition to any other rights available at law or equity.
7. RISK ALLOCATION
7.1 Insurance. Employer may, at its option, maintain key-person insurance on Employee, which Employee shall reasonably cooperate in obtaining.
7.2 Force Majeure. Neither party shall be liable for failure to perform caused by events beyond its reasonable control, provided that the non-performing party uses diligent efforts to resume performance.
[// GUIDANCE: Liability limitation is intentionally omitted to comply with “no_cap” instruction.]
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 State of Nebraska, without regard to its conflict-of-laws principles.
8.2 Forum Selection. The parties submit to the exclusive jurisdiction of the state courts located in [COUNTY], Nebraska, and waive any objection to venue or inconvenient forum.
8.3 Arbitration (Optional).
[OPTIONAL – DELETE IF NOT DESIRED] Any controversy or claim not seeking injunctive relief shall be finally resolved by binding arbitration administered by the American Arbitration Association under its Employment Arbitration Rules, held in [CITY], Nebraska. Judgment on the award may be entered in any court of competent jurisdiction.
8.4 Jury Waiver (Optional).
[OPTIONAL – DELETE IF NOT DESIRED] TO THE EXTENT NOT PROHIBITED BY LAW, EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION RELATING TO THIS AGREEMENT.
8.5 Attorneys’ Fees. The prevailing party in any action or proceeding relating to this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs.
9. GENERAL PROVISIONS
9.1 Amendment; Waiver. This Agreement may be amended only by a written instrument signed by both parties. No waiver shall be effective unless in writing and signed by the waiving party.
9.2 Assignment. Employer may assign this Agreement to any successor or Affiliate. Employee may not assign or delegate any rights or obligations without Employer’s prior written consent.
9.3 Severability; Blue-Pencil. If any provision is held invalid or unenforceable, a court may modify (blue-pencil) the provision to the minimal extent necessary to render it enforceable, and the remaining provisions shall remain in full force and effect.
9.4 Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the subject matter and merges all prior discussions or agreements.
9.5 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts (including via electronic signature), each of which shall be deemed an original and all of which together constitute one instrument.
9.6 Notices. All notices shall be in writing and delivered (i) personally, (ii) by certified mail, return receipt requested, or (iii) by nationally recognized overnight courier to the addresses set forth in the preamble (or as later designated in writing). Notice is deemed given on receipt.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
| EMPLOYER | EMPLOYEE |
|---|---|
| [AUTHORIZED SIGNATORY NAME] | [EMPLOYEE NAME] |
| Title: [ ] | |
| Date: [ ] | Date: [ ] |
[OPTIONAL NOTARIZATION BLOCK – insert if required by company policy or transaction specifics]
Schedule 1 – Geographic Area
[Insert counties, mile radius, or other objectively defined territory tied to Employee’s work activities.]
[// GUIDANCE: Final Review Checklist
• Verify that Restricted Period ≤ 2 years except for confidentiality.
• Confirm Geographic Area aligns with actual territory served.
• Provide additional consideration if Employee is already employed.
• Delete optional arbitration/jury waiver clauses if undesired.
• Ensure internal cross-references (Sections, Schedules) remain accurate after customization.]