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I hope this message finds you well, present circumstances excluded. NCA are enforceable as long as they are reasonable. They must be for reasonable amounts of time and within reasonable geographic limitations. Moreover, increasingly, it appears that when an individual is in a situation such as the one you are in wherein the business is on the verge of collapse, courts are unwilling to enforce the provisions of a non-compete as strictly.
Since you are not carrying with you proprietary information that is protected under intellectual property laws (I assume there is no patent or copyright on the design or process), then you should be fine in accepting the job and moving, even in view of the non-compete.
The fact that you are moving from the state certainly helps your cause.
While more of a personal decision than legal, you may want to let the new employer know about the NCA so they are not caught off guard if by some chance the current employer tries to make a stink about the issue. The reason I say this is a personal decision is that you know the people and how they would react. If they want your services, they will not be overly concerned about the NCA as it is likely unenforceable anyway.
To that point, if the current employer is struggling so bad right now, it is unlikely they are going to want to expend the legal fees to fight out the NCA anyway. More times than not, the NCA is a bluff.
In summary, based on the information you have provided, it is very likely that you will be perfectly fine taking the new job. NCA are enforceable based on reasonableness. Reasonableness takes into account geographic area and time. Since you are moving to another state and since the current employer is struggling, the law would indicate you will be fine.
Let me know if you have any additional questions or comments.
Best wishes going forward.
Here is a copy of the NCA clause, just in case. I don't think it would change anything, to me it's kind of vague. Especially since they never even signed it... Hopefully your answer stays pretty much the same after reading it.
Dan, that does not change anything. It is too vague, too broad, places no limitations on geography and only last for one year. Moreover, the fact that it only restricts, in essence, knowledge acquired on the job, bolsters your case even more. You had this knowledge and taught it to them...it was not acquired as a result of access to their R&D. The fact that they did not sign it is somewhat ancillary to the fact but certainly a feather in your cap and an additional argument to be made if it came down to it as well.
You should be in the clear based on the language of that document and predicated on what you have told me.
Let me know if you need anything else.
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