How to Issue Spot for Non-Compete, Trade Secrets/Confidential Information, and Intellectual Capital Concerns

In this fifth installment of our 2021 Trade Secrets Webinar Series, Seyfarth partners Robert Milligan and Suzanne Saxman discussed trade secret/confidentiality, non-compete and restrictive covenant issues that typically arise in M&A transactions. The panel walked through the keys issues in the typical M&A lifecycle and provided practical tips to help businesses effectively maximize value and protect their assets.

As a conclusion to this webinar, we compiled a summary of takeaways:

• Careful management of all stages in the M&A process is critical to maintaining a high level of confidentiality and avoiding inadvertent leaks and missteps.
• Phased sharing of sensitive and confidential commercial information can preserve a Seller’s valuable intellectual assets and avoid giving undue leverage to bidders or putting the seller’s business at risk.
• Special care should be given to the seller’s key employees and the use of retention agreements with enforceable restrictive covenants to ensure that the buyer retains continuity and key company leaders.
• Experienced counsel should carefully draft restrictive covenants in the definitive buy sell agreement and ensure that the covenants apply with applicable law, including addressing issues of reasonableness and antitrust consideration.