If you're leaving under "up and out", then it is you that holds the balance of power in the negotiations. Therefore you can insist that they waive the non-compete clause - otherwise they're going to have to go down some other avenue to get rid of you. And remember, one cannot be legitimately fired on the basis that they do not feel you cannot do the job a level above what you're actually employed to do (which is the premise of "up or out"...), only if you're not performing your CURRENT role properly.Note: This is not legal advice so do not rely on it.