The prelude to a friendly merger or acquisition involving sophisticated business entities is often referred to as "the dance." An interested prospective participant will approach another with an invitation to the dance amidst a swirl of risks and uncertainties. Although positive reactions to the invitation may range from tentative and cautious to aggressive and enthusiastic, both participants understand that the dance will require levels of intimacy and exploration that neither would otherwise permit and neither would want revealed to others.
Concerns about disclosure are heightened when the participants are competitors with common classes of products, customers and suppliers. To ease these concerns, confidentiality agreements and joint defense agreements (to consider possible antitrust ramifications) have become commonplace. The dynamics of the dance may ebb and flow and twist and turn, and the relative needs of the participants for protection under such agreements may change, but their terms and provisions continue to apply absent expiration or termination.
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