# Employee Restrictive Covenant Agreement

## Cover Terms

The terms below are incorporated into and form part of this agreement.

Employer
: {employer_name}

Employee
: {employee_name}

Employee Title / Position
: {employee_title}

Effective Date
: {effective_date}

Governing Law
: {governing_law}

New Consideration (if signed after hire)
: {mid_employment_consideration}

Confidentiality

Trade Secrets Duration
: {confidentiality_trade_secret_duration}

Other Confidential Information Duration
: {confidentiality_other_duration}

Employee Non-Solicitation

Duration
: {employee_nonsolicit_duration}

Covered Employee Lookback
: {covered_employee_period}

Customer Non-Solicitation

Duration
: {customer_nonsolicit_duration}

Covered Customer Lookback
: {covered_customer_period}

Non-Competition

Duration
: {noncompete_duration}

Restricted Territory
: {territory}

Competitive Business
: {competitive_business_definition}

Specified Competitors
: {specified_competitors}

Sale-of-Business Covenant
: {sale_of_business_covenant}

No Business with Covered Customers

Duration
: {nondealing_duration}

Non-Investment

Duration
: {noninvestment_duration}

Passive Public Holdings Threshold
: {passive_public_holdings_threshold}

Non-Disparagement

Duration
: {nondisparagement_duration}

## Standard Terms

### Defined Terms

[[Competitive Business]] means the business activities described in Cover Terms under Competitive Business.

[[Confidential Information]] means non-public information relating to Employer's business, including trade secrets, customer lists, pricing, business processes, technical data, and strategic plans, but excluding information that becomes public through no fault of Employee. This definition is tied to information Employer actually keeps confidential; it does not extend to the general knowledge, skill, and experience Employee acquired during employment.

[[Covered Customers]] means customers, vendors, referral sources, and business partners with whom Employee had material contact or for whom Employee had responsibility during the {covered_customer_period} before termination of employment.

[[Covered Employees]] means employees with whom Employee worked or whom Employee managed during the {covered_employee_period} before termination of employment.

[[Passive Public Holdings]] means ownership of securities of a publicly traded company representing less than {passive_public_holdings_threshold} of any class of such company's securities, and interests in diversified mutual funds, index funds, and exchange-traded funds that may hold securities of a Competitive Business.

[[Protected Interests]] means the legitimate business interests a West Virginia covenant may protect under the Reddy v. Community Health Foundation of Man reasonableness rule, namely Employer's trade secrets, customer lists, customer goodwill, and any unusual training in which Employer has invested, but not Employer's interest in avoiding ordinary competition and not general managerial, supervisory, merchandising, purchasing, or advertising skills, which are not protectable employer interests.

[[Restricted Period]] means the duration specified in Cover Terms for each covenant, beginning on the date Employee's employment with Employer ends for any reason.

[[Restricted Territory]] means the geographic area described in Cover Terms under Restricted Territory.

[[Solicit]] means to directly or indirectly contact, approach, induce, encourage, or provide Confidential Information to any person or entity for the purpose of diverting business away from Employer, but does not include responding to general advertisements or unsolicited inquiries not initiated by Employee.

[[Trade Secrets]] means information protected as a trade secret under the West Virginia Uniform Trade Secrets Act (W. Va. Code §§ 47-22-1 to 47-22-10) and, where applicable, the federal Defend Trade Secrets Act (18 U.S.C. § 1839).

### Recitals and Protectable Interests

Employer and Employee acknowledge that each restrictive covenant in this agreement is intended to protect one or more of Employer's Protected Interests and to impose no restraint greater than is required for that protection. West Virginia has no general non-compete statute; enforceability is governed by the common-law rule of Reddy v. Community Health Foundation of Man, 171 W. Va. 368, 298 S.E.2d 906 (1982), under which the employer must first show that it has an interest requiring protection, and a post-employment restraint is then reasonable only if it is no greater than is required for the protection of the employer, does not impose undue hardship on the employee, and is not injurious to the public. The parties acknowledge that each covenant is meant to guard Employer's trade secrets, customer lists, customer goodwill, and unusual training investment, and not to eliminate ordinary competition, and that general managerial, supervisory, merchandising, purchasing, and advertising skills are not protectable interests (Helms Boys, Inc. v. Brady, 171 W. Va. 66, 297 S.E.2d 840 (1982); Voorhees v. Guyan Machinery Co., 191 W. Va. 450, 446 S.E.2d 672 (1994)). The parties further acknowledge that where the employer fails to show a protectable interest, a court need not reach reasonableness at all (Special Services Bureau, Inc. v. Friend, No. 18-0478 (W. Va. Sept. 9, 2019) (mem. decision)). Each covenant is intended to be reasonable in time, territory, and scope, to impose no undue hardship on Employee, and to cause no injury to the public.

### Timing, Consideration, and Employee Acknowledgements

The parties acknowledge that this agreement is supported by adequate consideration. If this agreement is signed at the outset of employment, the offer and commencement of employment is the consideration for the covenants. If Employee is an existing employee and this agreement is contracted after employment has commenced without a restrictive covenant, the parties acknowledge that continued at-will employment alone is not sufficient consideration under West Virginia law: a covenant contracted after employment has begun must be supported by new consideration, and a contract that alters no benefits, conditions, or terms of employment and only imposes limitations fails (Environmental Products Co. v. Duncan, 168 W. Va. 349, 285 S.E.2d 889 (1981); Pemco Corp. v. Rose, 163 W. Va. 420, 257 S.E.2d 885 (1979)). In that case, the specific new consideration exchanged for the covenants is the value stated in Cover Terms under New Consideration — a raise, bonus, promotion, equity grant, or term extension — which the parties intend to be documented in this agreement rather than reconstructed later. Employee acknowledges having had the opportunity to consult with independent legal counsel before signing this agreement. Employee acknowledges that adequate consideration establishes only that the covenants are supported, not that they are reasonable — each covenant must independently satisfy the Reddy reasonableness inquiry on protectable interest, time, territory, and scope. This agreement is effective as of the Effective Date listed in Cover Terms.

### Confidential Information and Trade Secret Protection

Employee must treat all Confidential Information as strictly confidential. Employee must not use or disclose Confidential Information except as required to perform authorized job duties or with Employer's prior written consent. Employee's obligations regarding trade secrets continue for the period specified in Cover Terms under Trade Secrets Duration — intended to run in perpetuity, for as long as the information remains a trade secret. Employee's obligations regarding other Confidential Information continue for the period specified in Cover Terms under Other Confidential Information Duration, tied to actual confidential information rather than to Employee's ability to do similar work. Trade secrets are protected under West Virginia law, including the West Virginia Uniform Trade Secrets Act (W. Va. Code §§ 47-22-1 to 47-22-10), which operates alongside this agreement rather than replacing it: the act displaces conflicting tort, restitutionary, and other civil remedies for misappropriation of a trade secret, but does not affect contractual remedies, whether or not based upon misappropriation of a trade secret (W. Va. Code § 47-22-7). This confidentiality obligation is intended to operate alongside, and independent of, any restrictive covenant, and does not restrict Employee's use of the general knowledge, skill, and experience Employee acquired during employment.

### Permitted Disclosures and Protected Conduct

Nothing in this agreement prohibits Employee from: (a) reporting possible violations of law to any government agency, including the Securities and Exchange Commission, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, or any other federal, state, or local agency; (b) making disclosures protected under whistleblower provisions of any law; (c) discussing wages, hours, or other terms and conditions of employment as protected by applicable law, including Section 7 of the National Labor Relations Act (29 U.S.C. § 157); (d) testifying truthfully in legal proceedings; (e) responding to a subpoena, court order, or lawful demand of a government agency, with notice to Employer where permitted by law; or (f) filing a sealed complaint in court using Confidential Information without liability. Pursuant to the Defend Trade Secrets Act (18 U.S.C. § 1833(b)), Employee may not be held criminally or civilly liable for disclosing a trade secret in confidence to a government official or attorney solely for the purpose of reporting or investigating a suspected violation of law, or in a sealed court filing.

### Return, Deletion, and Certification of Company Property

Upon termination of employment, Employee must promptly return to Employer all documents, devices, files, credentials, and other materials containing or relating to Confidential Information. Where permitted, Employee must permanently delete electronic copies of Confidential Information from personal devices and accounts. Employee must certify compliance with this section in writing upon Employer's request. West Virginia's physician statute singles this protection out as one it does not limit — a provision barring a departing physician from taking employer property, patient lists, or records survives even where a physician practice restraint is capped (W. Va. Code § 47-11E-3) — and for every worker the certification is the cleanest contemporaneous evidence if protected material later surfaces at a competitor.

### Non-Solicitation of Employees

During the Restricted Period, Employee must not Solicit, recruit, hire, or attempt to hire any Covered Employee. This restriction does not prohibit Employee from providing a professional reference upon request or from hiring a person who responds to a general advertisement not directed specifically at Employer's employees. No staged West Virginia case sets a separate standard for an employee non-solicit, so this covenant is drafted to remain a modest restraint analyzed under the Reddy reasonableness rule, reaching only Covered Employees during the Restricted Period and no broader than necessary to protect Employer's workforce stability and goodwill, rather than a workforce-wide mobility ban a court could treat as a disguised non-compete. A comparable non-solicitation of the employer's employees is expressly preserved even in the strictest covenant setting in the state, the physician statute (W. Va. Code § 47-11E-3).

### Non-Solicitation of Customers, Vendors, Referral Sources, and Business Partners

During the Restricted Period, Employee must not Solicit the business of any Covered Customer. This covenant is intended to operate as a true non-piracy provision under Wood v. Acordia of West Virginia, Inc., 217 W. Va. 406, 618 S.E.2d 415 (2005): it restricts Employee from soliciting Employer's customers or making use of Employer's Confidential Information, ordinarily without any territorial limit, and is meant to be less restrictive than a non-compete. The lighter treatment is earned, not presumed — validity turns on whether Employer has a protectable business interest, the extent to which the provision reasonably and fairly protects that interest, and whether it unjustly restricts Employee from engaging in the business activity Employee seeks to pursue. Accordingly, this covenant reaches only Covered Customers with whom Employee had material contact and is drawn no broader than necessary to protect Employer's customer goodwill; it does not bar Employee from working in the same field, because a customer clause that effectively bars similar work in a territory loses the non-piracy frame and is reviewed as the non-compete it functions as.

### No Business with Covered Customers

During the Restricted Period, Employee must not accept, service, or do business with any Covered Customer, regardless of whether Employee or the Covered Customer first initiated contact. This restriction is broader than non-solicitation because it applies even if the Covered Customer approaches Employee. In West Virginia that reach pushes the clause away from the solicitation-and-information conduct that earns non-piracy treatment under Wood v. Acordia and toward the work-ban territory measured by the full Reddy reasonableness inquiry; it is therefore sized tightly to the goodwill it protects and reaches only Covered Customers with whom Employee had material contact. The parties treat its inclusion as a deliberate risk decision rather than boilerplate.

### Non-Competition

During the Restricted Period, Employee must not engage in, be employed by, consult for, or have an active ownership interest in any Competitive Business within the Restricted Territory. This covenant exists to protect Employer's Protected Interests — its trade secrets, customer lists, customer goodwill, and unusual training investment — and not to restrain ordinary competition. Consistent with the Reddy v. Community Health Foundation of Man reasonableness rule, the parties intend this covenant to be no greater than is required for the protection of Employer, to impose no undue hardship on Employee, and to cause no injury to the public, with its time and territory sized to Employee's actual role and Employer's actual market at signing. The parties acknowledge West Virginia's facial-voidness rule: a covenant unreasonable on its face — excessively broad time or area limitations, or an apparent purpose of intimidating the employee rather than protecting Employer's business — is utterly void and unenforceable, and a court will not undertake even a partial enforcement of it (Reddy; Huntington Eye Associates, Inc. v. LoCascio, 210 W. Va. 76, 553 S.E.2d 773 (2001)). The parties therefore draw this restraint at a scope Employer can defend at signing rather than relying on any court to narrow it. If Employer has identified specific competitors in Cover Terms under Specified Competitors, the parties intend this covenant to be understood as limited to those named competitors, because a restraint bound to named competitors is strong evidence that it is no greater than required. If this covenant is given by Employee in connection with a genuine sale of a business or practice to Employer, as indicated in Cover Terms under Sale-of-Business Covenant, the parties intend it to be reviewed under West Virginia's more forgiving sale-of-business standard (Weaver v. Ritchie, 197 W. Va. 690, 478 S.E.2d 363 (1996)); that standard is available only where the covenant genuinely rides the sale and is supported by transaction consideration. Passive Public Holdings are permitted.

### Non-Investment

During the Restricted Period, Employee must not acquire or hold any active ownership interest in, serve as a director, officer, manager, or advisor to, or have material economic participation in any Competitive Business. This restriction primarily targets active or material ownership in private competitors. Because this covenant restrains active roles at and material participation in a Competitive Business, it is a post-employment restraint analyzed under the Reddy reasonableness rule and is drawn no broader than necessary to protect Employer's Protected Interests. An investment ban with no carve-out and no clear end reads as the grasping covenant the facial screen exists to catch, so Passive Public Holdings below the threshold stated in Cover Terms are permitted and the covenant shares the defined Restricted Period.

### Non-Disparagement

During the Restricted Period specified in Cover Terms for Non-Disparagement, Employee must not make statements that are intended to or reasonably likely to disparage Employer, its officers, directors, employees, products, or services. This section does not restrict Employee from making truthful statements in legal proceedings, providing truthful testimony, making disclosures to government agencies, or exercising rights protected by law, including rights protected under Section 7 of the National Labor Relations Act.

### Physician and Health Care Practitioner Covenants

If Employee is a physician and this contract was entered into, modified, renewed, or extended on or after July 1, 2017, any covenant not to compete in this agreement is subject to the West Virginia physician covenant statute (W. Va. Code §§ 47-11E-1 to 47-11E-5) and is not enforced as an ordinary commercial restraint. Under that statute, a covenant not to compete in a contract between a physician and an employer is limited to not more than one year in duration and thirty road miles from the physician's primary place of practice with the employer, and the covenant is void and unenforceable upon the termination of the physician's employment by the employer (W. Va. Code § 47-11E-2). Accordingly, any physician covenant in this agreement is intended to use a radius no greater than thirty road miles and a term no greater than one year, and the parties acknowledge it becomes void and unenforceable if Employer terminates the physician's employment. The statute preserves, unless this agreement states otherwise, provisions barring a physician from taking employer property, patient lists, or records; provisions requiring repayment of loans, relocation expenses, signing bonuses, or recruiting, education, and training costs; nondisclosure provisions for confidential information and trade secrets; patient and employee non-solicitation provisions; and provisions for liquidated damages (W. Va. Code § 47-11E-3). The one-year and thirty-mile limits do not apply, unless this agreement provides otherwise, where the physician has sold his or her business or practice to Employer, or to contracts between physicians who are shareholders, owners, partners, members, or directors of a health care practice (W. Va. Code § 47-11E-4).

### No Conflicting Obligations

Employee represents that performing duties for Employer and complying with this agreement does not conflict with any prior agreement, court order, or legal obligation binding on Employee. Employee must promptly disclose to Employer any potential conflict that arises during employment.

### Notice to Future Employers and Other Third Parties

Employer may disclose the existence and terms of this agreement to any prospective employer or business associate of Employee if Employer has a reasonable belief that Employee may breach this agreement. Employee consents to this disclosure. Employer acknowledges that in West Virginia a covenant unreasonable on its face is utterly void, so a notice waving such a covenant at a new employer asserts an instrument with no legal force and may expose Employer to a tortious-interference claim; Employer should condition any such notice on a restraint it is prepared to defend under the Reddy reasonableness inquiry.

### Tolling During Breach

If Employee breaches any restrictive covenant in this agreement, Employer may seek to have the Restricted Period for that covenant equitably extended by the period of the breach. The parties acknowledge that whether a West Virginia court may extend a restricted period for time spent in breach or litigation, or will enforce an extension-on-breach provision, is an open question in West Virginia: no controlling decision squarely decides it, and a court that holds a facially unreasonable covenant utterly void and refuses even partial enforcement of a grasping restraint may also resist adding time the parties did not validly supply. Any extension is itself a longer restraint that must independently satisfy the three-part Reddy reasonableness inquiry rather than operate automatically; the parties do not intend an open-ended or indefinite extension, and this provision does not enlarge any physician covenant beyond the statutory one-year cap (W. Va. Code § 47-11E-2).

### Remedies

Employee acknowledges that a breach of this agreement may cause Employer irreparable harm for which money damages would be inadequate, and that Employer may seek injunctive or other equitable relief in addition to any other remedies available at law. The parties acknowledge that this recital buys nothing on its own: West Virginia courts deny enforcement at the protectable-interest gate without ever reaching reasonableness, and no recital substitutes for Employer's threshold showing of an interest requiring protection (Special Services Bureau, Inc. v. Friend, No. 18-0478 (W. Va. Sept. 9, 2019) (mem. decision)). For trade-secret claims, the parties note the statutory overlay: under the West Virginia Uniform Trade Secrets Act, a court may award reasonable attorney's fees to the prevailing party where a misappropriation claim is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation occurs (W. Va. Code § 47-22-4), independent of any contractual fee clause. Absent a fee-shifting clause, each side bears its own costs under the default American Rule; any contractual fee-shifting should run both ways.

### Enforceability and Severability

If any provision of this agreement is found to be unenforceable, the remaining provisions remain in full force and effect. Each restrictive covenant in this agreement is intended to be independently enforceable and to read on its own, so that a court's refusal to enforce one covenant does not affect the others. The parties acknowledge West Virginia's two-step rule and do not rely on this clause to cure overbreadth: a covenant unreasonable on its face is utterly void, and a court will not undertake even a partial enforcement of it (Reddy v. Community Health Foundation of Man, 171 W. Va. 368, 298 S.E.2d 906 (1982); Huntington Eye Associates, Inc. v. LoCascio, 210 W. Va. 76, 553 S.E.2d 773 (2001)). A savings clause does not move a facially unreasonable covenant from the void column to the tailorable one; each covenant is instead drawn as a narrow, severable, reasonable restraint the employer can defend at signing.

### No Reliance on Judicial Narrowing

The parties do not rely on any court to narrow, reform, or blue-pencil an overbroad restraint in this agreement. Under West Virginia law, judicial tailoring is reserved for the minor overbreadth to which a facially reasonable covenant is naturally prone; it is unavailable for a covenant that is unreasonable on its face, which is held void and unenforceable without even partial enforcement, and which is distinguished from the ordinary-reasonableness review used to address minor overbreadth (Huntington Eye Associates, Inc. v. LoCascio, 210 W. Va. 76, 553 S.E.2d 773 (2001); Reddy v. Community Health Foundation of Man, 171 W. Va. 368, 298 S.E.2d 906 (1982)). Accordingly, each restrictive covenant in this agreement is drawn at the narrow scope Employer can defend at signing — a short term, a tight territory, and a purpose tied to a proven Protected Interest — and is intended to be enforceable as written rather than in reliance on judicial revision.

### Survival and Expiration of Each Covenant

Each restrictive covenant in this agreement survives the termination of Employee's employment for the Restricted Period specified in Cover Terms and is intended to expire on its own definite schedule and to read on its own. Obligations under the Confidential Information and Trade Secret Protection section survive to the extent they relate to trade secrets, for as long as the information remains a trade secret. This self-contained survival is deliberate: in a state where a facially unreasonable covenant gets no judicial repair, keeping each covenant separate is what lets a sound non-piracy or confidentiality term outlive a failed non-compete. All other provisions survive to the extent necessary to enforce rights that arose during employment.

### Assignment and Successors

Employee may not assign this agreement or any rights or obligations under it. Employer may assign this agreement to any affiliate, successor, or acquirer of all or substantially all of Employer's business or assets. This agreement is binding on and inures to the benefit of the parties and their respective heirs, successors, and permitted assigns. The parties acknowledge that an assignment moves the covenant but does not upgrade it: whoever seeks enforcement must itself hold the Protected Interest the covenant guards, and the restraint must still be no greater than that interest requires under the Reddy reasonableness inquiry.

### Governing Law, Venue, and Dispute Process

This agreement is governed by the law listed in Cover Terms. Where West Virginia law governs, the enforceability of each restrictive covenant is determined under the common-law rule of Reddy v. Community Health Foundation of Man and its progeny; there is no general West Virginia non-compete statute and no statutory safe harbor for a general-employment covenant, so each covenant is drafted to survive the two-stage protectable-interest-and-reasonableness inquiry and West Virginia's facial-voidness screen rather than to escape them. Disputes will be resolved in the courts of the Governing Law state, subject to non-waivable rights under applicable law. The parties intend that the governing-law and venue choices match where Employee actually lives and works, and treat any mismatch between the named state and Employee's real location as a question for counsel.

### Entire Agreement, Amendment, Waiver, and Electronic Signatures

This agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior agreements, understandings, and negotiations on this subject. This agreement may be amended only in writing signed by both parties. The parties acknowledge two West Virginia wrinkles: an amendment that re-papers a covenant after employment has begun is itself a covenant contracted after employment commenced and needs new consideration of its own (Environmental Products Co. v. Duncan, 168 W. Va. 349, 285 S.E.2d 889 (1981)); and for a physician contract, a modification, renewal, or extension on or after July 1, 2017 pulls the agreement inside the physician statute and its one-year, thirty-mile cap (W. Va. Code § 47-11E-5). A party's failure to enforce any provision does not waive that party's right to enforce it later. This agreement may be executed in counterparts, including by electronic signature, each of which is an original.

## Signatures

By signing this agreement, each party acknowledges and agrees to the restrictive covenant obligations above. Employee confirms having read and understood each provision, including the Cover Terms.

Employer: {employer_name}

Signature: _______________
Signatory Name: {employer_signatory_name}
Title: {employer_signatory_title}
Date: _______________

**Employee**

Signature: _______________
Print Name: {employee_name}
Date: _______________