EMPLOYEE NON-COMPETE AGREEMENT
(New Mexico)
[// GUIDANCE: This template is designed for use with employees other than certain licensed healthcare practitioners. Under N.M. Stat. Ann. § 24-1I-2, post-employment covenants not to compete are unenforceable against specified healthcare providers. Confirm the Employee’s status before finalizing.]
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-COMPETE AGREEMENT (this “Agreement”) made effective as of [EFFECTIVE DATE] (the “Effective Date”), by and between:
• [EMPLOYER LEGAL NAME], a [STATE OF ORGANIZATION] [ENTITY TYPE] with its principal place of business at [ADDRESS] (“Employer”); and
• [EMPLOYEE FULL LEGAL NAME], an individual residing at [ADDRESS] (“Employee”).
Recitals
A. Employer is engaged in the business of [DESCRIBE BUSINESS] (the “Business”).
B. Employee is being [hired/promoted/otherwise engaged] in the position of [TITLE].
C. In the course of employment, Employee will receive specialized training and access to Confidential Information (as defined below).
D. As express consideration for Employer’s offer of employment, access to Confidential Information, and other good and valuable consideration set forth herein, the parties agree as follows:
2. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings set forth below. Terms defined in the singular have the same meaning in the plural and vice versa.
“Affiliate” – any entity that, directly or indirectly, controls, is controlled by, or is under common control with Employer.
“Business Activities” – the design, development, marketing, sale, or provision of [SPECIFY CORE PRODUCTS/SERVICES] that are competitive with the Business.
“Confidential Information” – any non-public information relating to the Business, including trade secrets, technical data, customer lists, pricing, marketing strategies, and proprietary processes, whether in written, oral, electronic, or other form.
“Restricted Period” – the period beginning on the Termination Date and continuing for [___] months thereafter.
“Restricted Territory” – (a) the State of New Mexico; and (b) each county, parish, or similar jurisdiction within [__] miles of any location where Employer conducted material Business Activities during the 12-month period immediately preceding the Termination Date.
“Termination Date” – the effective date of termination of Employee’s employment with Employer for any reason.
3. OPERATIVE PROVISIONS
3.1 Employment. Employer hereby employs Employee, and Employee accepts such employment, upon the terms and conditions set forth in [EMPLOYMENT AGREEMENT/EMPLOYEE HANDBOOK], which are incorporated herein by reference.
3.2 Consideration.
(a) Initial Hire. If this Agreement is executed contemporaneously with Employee’s initial hire, the offer of employment and access to Confidential Information constitute sufficient consideration.
(b) Existing Employee. If Employee is currently employed, additional consideration of (i) a one-time payment of $[___], and/or (ii) grant of [STOCK OPTIONS/BONUS/OTHER], is hereby provided.
[// GUIDANCE: Continued employment alone may be insufficient consideration for a new non-compete signed mid-employment. Provide separate consideration.]
3.3 At-Will Employment. Nothing herein alters Employee’s at-will status, unless otherwise provided in a separate, duly executed employment contract.
4. REPRESENTATIONS & WARRANTIES
4.1 Employee represents and warrants that:
(a) Employee has full power and authority to enter into this Agreement and to perform the obligations hereunder;
(b) Employee is not bound by any agreement or restrictive covenant that would conflict with or be violated by Employee’s employment with Employer;
(c) Employee is not a “healthcare practitioner” within the meaning of N.M. Stat. Ann. § 24-1I-2.
[// GUIDANCE: Delete or modify subsection (c) if the Employee falls within the healthcare practitioner category; non-compete will be void as to post-employment restrictions.]
4.2 Survival. All representations, warranties, and covenants herein shall survive termination of employment to the extent necessary to enforce this Agreement.
5. COVENANTS & RESTRICTIONS
5.1 Non-Competition. During the Restricted Period, Employee shall not, within the Restricted Territory, directly or indirectly:
(a) own, manage, operate, control, be employed by, consult for, or render services to any business that engages in Business Activities; or
(b) solicit or divert any business from any customer or prospective customer of Employer with whom Employee had material contact during the 12 months preceding the Termination Date.
5.2 Carve-Outs. The foregoing shall not prohibit Employee from:
(a) holding ≤ 2% of the outstanding publicly traded securities of any company;
(b) accepting employment in a capacity that is entirely unrelated to Business Activities; or
(c) conducting activities expressly approved in advance in writing by Employer.
5.3 Confidentiality & Non-Disclosure. Employee shall use Confidential Information solely for Employer’s benefit and shall not disclose it except as expressly authorized.
5.4 Non-Solicitation of Employees. For a period of [__] months following the Termination Date, Employee shall not solicit for employment or hire any person who was employed by Employer within the six (6) months preceding such solicitation.
5.5 Notice Obligations. Employee shall, upon written request, inform any prospective employer of the existence of this Agreement and provide Employer with a copy of any subsequent employment agreement pertaining to competitive activities.
6. DEFAULT & REMEDIES
6.1 Events of Default. A breach of Sections 5.1–5.4 constitutes a default.
6.2 Cure Period. Because of the irreparable nature of harm, no cure period shall apply to a breach of Sections 5.1–5.4.
6.3 Injunctive Relief. Employee acknowledges that any breach will cause irreparable damage to Employer for which monetary damages are inadequate, and consents to the issuance of temporary, preliminary, and/or permanent injunctive relief without the necessity of posting bond, in addition to any other remedies available at law or equity.
6.4 Monetary Damages. Employer may recover actual, consequential, and incidental damages resulting from Employee’s breach.
6.5 Attorneys’ Fees. The prevailing party in any action to enforce this Agreement shall be entitled to reasonable attorneys’ fees and costs.
7. RISK ALLOCATION
7.1 Indemnification by Employee. Employee shall indemnify, defend, and hold harmless Employer and its Affiliates from and against any and all claims, damages, losses, liabilities, costs, or expenses (including reasonable attorneys’ fees) arising out of or relating to Employee’s breach of this Agreement.
7.2 Limitation of Liability. No contractual cap on liability applies. All damages recoverable under New Mexico law remain available.
7.3 Insurance. Employer may, at its sole discretion, maintain employment practices liability insurance; nothing herein imposes procurement obligations on Employee.
7.4 Force Majeure. Neither party shall be liable for failure to perform if such failure results from causes beyond its reasonable control, provided that the non-performing party uses commercially reasonable efforts to resume performance.
8. DISPUTE RESOLUTION
8.1 Governing Law. This Agreement shall be governed by and construed in accordance with the employment laws of the State of New Mexico, without regard to its conflict-of-law principles.
8.2 Forum Selection. The parties submit to the exclusive jurisdiction of the state courts located in [COUNTY], New Mexico, for any action arising out of or related to this Agreement, subject to Section 8.3.
8.3 Optional Arbitration. [OPTIONAL – DELETE IF NOT USED]
(a) Any dispute arising from this Agreement shall, at Employer’s sole election, be resolved by final and binding arbitration administered by [ARBITRATION AGENCY] in accordance with its [EXPEDITED/EMPLOYMENT] rules.
(b) The arbitrator shall have authority to grant injunctive relief.
(c) Judgment on the award may be entered in any court of competent jurisdiction.
8.4 Optional Jury Waiver. [OPTIONAL – DELETE IF NOT USED] EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT.
8.5 Equitable Remedies Preserved. Nothing in this Section shall limit Employer’s right to seek equitable relief in a court of competent jurisdiction to enforce Sections 5.1–5.4.
9. GENERAL PROVISIONS
9.1 Amendment & Waiver. No amendment or waiver shall be effective unless in writing and signed by both parties. A waiver of any breach shall not be deemed a waiver of any subsequent breach.
9.2 Assignment. Employee may not assign or delegate any rights or obligations under this Agreement. Employer may assign this Agreement to any Affiliate or successor by merger, consolidation, or asset sale.
9.3 Successors & Assigns. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
9.4 Severability & Reformation. If any provision is held unenforceable, such provision shall be reformed to the minimum extent necessary to render it enforceable, or, if not possible, severed; the balance of the Agreement shall remain in full force.
9.5 Integration. This Agreement, together with any contemporaneous employment agreement, constitutes the entire agreement of 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 multiple counterparts (including via electronic signature or PDF), each of which is deemed an original and all of which together constitute one instrument.
9.7 Notices. Any notice shall be in writing and deemed given when delivered personally or sent by certified mail, return receipt requested, or by nationally recognized overnight courier, to the addresses set forth above or as last provided in writing.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
| EMPLOYER | EMPLOYEE |
|---|---|
| _____ | _____ |
| Name: [NAME] | Name: [NAME] |
| Title: [TITLE] | |
| Date: _______ | Date: _______ |
[Notary Block if required by company policy]
[// GUIDANCE:
1. Before issuing to Employee, confirm (a) Restricted Period ≤ 18–24 months; (b) Restricted Territory tied to actual business footprint; (c) compensation aligns with NM wage laws.
2. Consider attaching a disclosure schedule listing key customers or geographic areas for clarity.
3. File the fully executed Agreement in personnel records and provide Employee with a copy.]