Non-Compete Agreement

EMPLOYEE NON-COMPETE AGREEMENT

(South Dakota)

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Operative Provisions
4. Representations & Warranties
5. Covenants & Restrictions
6. Default & Remedies
7. Risk Allocation
8. Dispute Resolution
9. General Provisions
10. Execution Block

1. DOCUMENT HEADER

NON-COMPETE AGREEMENT (this “Agreement”) made and entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between:

• [EMPLOYER LEGAL NAME], a [STATE OF ORGANIZATION] [ENTITY TYPE] having its principal place of business at [ADDRESS] (“Employer”); and
• [EMPLOYEE NAME], an individual residing at [ADDRESS] (“Employee”).

1.1 Recitals

A. Employer is engaged in the business of [GENERAL BUSINESS DESCRIPTION] (the “Business”).
B. Employee is or will be employed by Employer in the position of [POSITION TITLE] and will obtain access to Employer’s Confidential Information (as defined below) and Client Relationships (as defined below).
C. As a condition of Employee’s employment and the consideration set forth herein, the parties desire to enter into this Agreement to protect Employer’s legitimate business interests, all in accordance with South Dakota law, including S.D. Codified Laws § 53-9-11.

NOW, THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and 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 and apply throughout the Agreement unless the context clearly requires otherwise.

“Affiliate” means, with respect to any entity, an entity that directly or indirectly controls, is controlled by, or is under common control with such entity.

“Client” means any Person to whom Employer has sold products or services or with whom Employer has an active proposal or bid within the twelve (12) months preceding the Termination Date.

“Competing Business” means any business that, in whole or in part, offers products or services that are the same as or substantially similar to the Business within the Restricted Territory.

“Confidential Information” means all non-public information of Employer, whether oral, written, electronic, or otherwise, including trade secrets, customer lists, pricing, marketing strategies, product development, and any other proprietary data.

“Person” means any individual, corporation, partnership, limited liability company, association, governmental authority, or other entity.

“Restricted Period” means the period beginning on the Termination Date and ending on the earlier of (a) two (2) years thereafter or (b) the date this Agreement is terminated or modified pursuant to Section 9.2.

“Restricted Territory” means each county (or city not situated within a county) in the State of South Dakota (i) in which Employer conducts the Business as of the Termination Date and (ii) in which Employee performed duties or had material responsibilities on behalf of Employer during the twenty-four (24) months preceding the Termination Date.

“Termination Date” means the date Employee’s employment with Employer terminates for any reason.

3. OPERATIVE PROVISIONS

3.1 Employment; Duties

Employee shall serve in the capacity described in the Recitals and perform such duties as are customarily associated with such position, subject to the direction of Employer.

3.2 Consideration

As consideration for Employee’s obligations hereunder, Employer shall provide:
a. Continued at-will employment commencing on the Effective Date;
b. [SIGNING BONUS AMOUNT] payable within [X] days of the Effective Date; and
c. Access to Confidential Information and Client Relationships.

Employee acknowledges that such consideration is adequate and sufficient to support the covenants herein.

3.3 At-Will Employment

Nothing contained herein shall be construed to alter Employee’s at-will employment status. Employer or Employee may terminate employment at any time, with or without cause or notice.

4. REPRESENTATIONS & WARRANTIES

4.1 Mutual

Each party represents and warrants that it has full power and authority to enter into and perform this Agreement and that the execution of this Agreement does not violate any other agreement to which it is a party.

4.2 Employee

Employee further represents and warrants that:
a. Employee is not subject to any restrictive covenant that would prohibit or impair Employee’s performance hereunder;
b. Employee will comply with all applicable policies of Employer; and
c. All information provided to Employer in connection with employment is true, complete, and accurate.

All representations and warranties shall survive execution and the Termination Date.

5. COVENANTS & RESTRICTIONS

5.1 Non-Competition

During employment and throughout the Restricted Period, Employee shall not, within the Restricted Territory, directly or indirectly engage in, manage, operate, finance, or have an ownership interest in any Competing Business.

5.2 Non-Solicitation of Clients

During employment and for two (2) years after the Termination Date, Employee shall not, directly or indirectly, solicit or attempt to solicit any Client for the purpose of providing products or services competitive with the Business.

5.3 Non-Solicitation of Employees

During employment and for two (2) years after the Termination Date, Employee shall not, directly or indirectly, induce or encourage any employee or independent contractor of Employer to leave Employer’s employ.

5.4 Confidentiality

Employee shall maintain all Confidential Information in strict confidence and use it solely for the benefit of Employer. The obligations in this Section survive indefinitely.

5.5 Return of Property

Upon the earlier of Employer’s request or the Termination Date, Employee shall promptly return all property of Employer, tangible or intangible, including documents and electronic files.

6. DEFAULT & REMEDIES

6.1 Events of Default

A “Default” occurs if Employee breaches any covenant or obligation under Sections 5.1–5.5 or if any representation in Section 4 proves untrue in any material respect.

6.2 Notice & Cure

Employer shall provide written notice specifying the nature of any alleged Default. Where the breach is curable, Employee shall have five (5) calendar days to cure. Breaches of Section 5.4 (Confidentiality) are deemed incapable of cure.

6.3 Remedies

a. Injunctive Relief. Employee acknowledges that a breach would cause irreparable harm for which monetary damages are inadequate; therefore, Employer shall be entitled to temporary, preliminary, and permanent injunctive relief without the need to post bond.
b. Monetary Damages. Employer may recover compensatory damages, including lost profits, and all costs of enforcement.
c. Equitable Accounting. In the event of breach, Employer may demand an accounting and disgorgement of all profits derived from such breach.

6.4 Attorney Fees

Employee shall indemnify Employer for all reasonable attorney fees, court costs, and expenses incurred in enforcing this Agreement following Employee’s breach.

7. RISK ALLOCATION

7.1 Indemnification by Employee

Employee shall indemnify, defend, and hold harmless Employer, its Affiliates, and their respective officers, directors, and employees from and against any and all claims, damages, liabilities, and expenses (including reasonable attorney 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 available at law or in equity may be pursued.

7.3 Insurance

[OPTIONAL] Employer may, at its sole discretion, obtain key-person or similar insurance on Employee’s life or services.

7.4 Force Majeure

Neither party shall be liable for failure to perform due to events beyond its reasonable control; provided that this Section does not excuse any payment or confidentiality obligations.

8. DISPUTE RESOLUTION

8.1 Governing Law

This Agreement and any disputes hereunder shall be governed by and construed in accordance with the laws of the State of South Dakota, without regard to its conflict-of-laws principles.

8.2 Forum Selection

Each party irrevocably submits to the exclusive jurisdiction of the state courts located in [COUNTY], South Dakota for any action arising out of or relating to this Agreement, and waives all objections to venue therein.

8.3 Arbitration (Optional)

[OPTIONAL: If selected, insert comprehensive arbitration clause compliant with the Federal Arbitration Act, including procedure, selection of arbitrators, and scope. Remove or replace Section 8.2 if arbitration is mandatory.]

8.4 Jury Trial Waiver (Optional)

[OPTIONAL: EACH PARTY HEREBY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.]

8.5 Tolling

The Restricted Period shall be tolled and extended for any period during which Employee is in breach of Sections 5.1–5.3.

9. GENERAL PROVISIONS

9.1 Amendment; Waiver

No amendment or waiver of any provision shall be effective unless in a writing signed by both parties. A waiver on one occasion is not a waiver on any other occasion.

9.2 Severability; Reformation

If any provision is held unenforceable, a court of competent jurisdiction shall modify the provision to the minimum extent necessary to render it enforceable consistent with the parties’ intent, and the remaining provisions shall remain in full force and effect.

9.3 Assignment

Employee may not assign this Agreement or any rights or obligations hereunder without Employer’s prior written consent. Employer may assign this Agreement to any successor or Affiliate.

9.4 Entire Agreement

This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior agreements, whether written or oral.

9.5 Successors & Assigns

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, representatives, successors, and permitted assigns.

9.6 Counterparts; Electronic Signatures

This Agreement may be executed in multiple counterparts, each of which is deemed an original, but all of which together constitute one instrument. Signatures delivered electronically shall be deemed original signatures.

10. EXECUTION BLOCK

IN WITNESS WHEREOF, the parties have executed this Employee Non-Compete Agreement as of the Effective Date.

EMPLOYER:
[EMPLOYER LEGAL NAME]

By: _______________________________
Name: [AUTHORIZED SIGNATORY]
Title: [TITLE]
Date: _____________________________

EMPLOYEE:

___________________________________
[EMPLOYEE NAME]
Date: _____________________________

© [Year] [Firm Name] – All rights reserved.