My question involves employment and labor law for the state of: North Carolina
I apologize ahead of time for the length of this post. I think we need to talk to a lawyer, but I'm hoping to at least get the right questions to ask a lawyer and be efficient with the laywer's time and our money by getting feedback here.
Bob, Al, and I all signed non-compete agreements at our current company, a small start-up - let's call it "CP Inc." It essentially says:
1. We can't work at a competitor in "the Business area" after we leave CP Inc. for 18 months
2. We can't poach colleagues at CP Inc. to join us at a competitor in "the Business area" for 18 months
"The Business area" is somewhat vague in that in spells out exactly some of the things CP Inc. does , but then also says CP Inc. does "other things" and that I can't do those "other things" for 18 months after I leave, either.
CP Inc. makes a specialized product that requires critical, expensive, specialized testing. Very few companies worldwide make the product and each relies on in-house testing. Product customers occasionally need testing for diagnostic purposes. A few independent companies offer testing of inferior quality so product customers find it extremely difficult to get timely, quality testing. CP Inc. sometimes sells testing to product customers when production is slow as a small source of revenue.
CP Inc.'s new and planned products require the next generation version of testing. CP Inc. needs to invest a lot of money in designing and building the next generation testing equipment - in fact, more money and dedicated personnel than CP Inc. has. So CP Inc. is talking to a 3rd party, Acme, to design and build testing equipment for CP Inc., with the promise to Acme of a steady stream of future testing revenue from CP Inc. and product customers that aren't being serviced now. These negotiations are not finalized but CP Inc. wants to move quickly. Bob, Al, and I would help Acme design and build the equipment, with Acme funding it and keeping it for themselves to use to offer testing services to anyone they liked.
A much bigger, more well-funded company, "Blue Co.", approached Bob to come work for Blue Co. doing unrelated work that does not currently compete with CP Inc., either in testing or in making the product itself. Blue Co. has made Bob a formal offer of employment. Bob told us about Blue Co. Al and I are also talking to Blue Co. and we also expect offers of employment soon.
Bob told Blue Co. about the opportunity to design and build next generation testing equipment. Bob, Al and I are part of a small group of people worldwide with the expertise to design and build the testing equipment. Blue Co. has enough money and is very interested in getting into this testing area. Bob gave Blue Co. a copy of our non-competes.
Options as we see them:
1. We could quit CP Inc., go work for Blue Co. on unrelated Business areas - that is, have nothing to do with designing and building the next generation testing equipment - and therefore not worry about the non-competes. Even though Bob introduced Al and I to Blue Co., it doesn't look to us that this violates the non-compete poaching clause since we'd be working in unrelated Business areas.
2. We'd rather approach CP Inc. now, tell them that we're going to Blue Co., and that we can design and build the next generation equipment using Blue Co.'s money. Blue Co. would then offer the testing services to CP Inc. that are critical to them. This allows CP Inc. to get the testing services they need without upfront cost to them; it makes money for Blue Co. by essentially starting a new business for them and selling services to CP Inc. and product customers; and it allows us to keep working in the field we like, but for Blue Co. instead of CP Inc. (Blue Co is offering much more compensation and has other business units that we like and is generally the more appealing company).
We would ask CP Inc. to void portions of our non-competes in order to do this, but they'd be free to keep intact the part related to making their product. CP Inc. has a side business that represents maybe 10% of CP Inc.'s revenues. We think we could grow that into a much bigger business given the resources, talent, and customer base at Blue Co. That's why we are so keen to get rid of our non-competes - to work on this side business at Blue Co.
However, we don't know the reaction of the owners at CP Inc. They have already sued multiple former employees for leaving for competitors and violating non-competes. We'd like to approach management amicably but are worried that merely suggesting we want to leave CP Inc. and build the testing equipment and offer testing service to both CP Inc. and product customers could trigger action with respect to the non-compete.
Also, since Bob, Al, and I are key people in a small critical unit at CP Inc, it will have a severe impact at CP Inc. if we all leave at once. If Bob, Al, and I tell management that we're colluding to leave together, we think they will see this as scheming to try to hurt CP Inc. and we worry that the CEO and trigger-happy lawyer will come after us - just the threat of lawsuit with the time and expense involved is unappealing. Plus, we wouldn't then dare risk even sniffing around the side business at Blue Co. if we got a negative reaction from CP Inc. for the next 18 months.
3. We could go to Blue Co., do unrelated work for 18 months until our non-competes expire, and then compete with CP Inc. However, the market for this side business is just taking off. We'd hate to miss it.
4. Bob could leave, Al could leave a month later, and I could leave another month later, trying to make it better appear that we didn't scheme or collude to poach ourselves. Then, after we're settled at Blue Co., we could reach out to CP Inc to offer the testing service. However, CP Inc. is trying to move quickly to secure the testing service from Acme and we worry about the window closing and being able to offer the testing service carrot to, again, get out of our non-competes to work on this side business that CP Inc. is not growing as they could.
Again, I apologize for the length of this post.

