Confidentiality Agreement Between Creditors' Committee and Debtor in Possession

Summary

This form confidentiality agreement is for use by a Chapter 11 debtor and the creditors' committee. This template includes practical guidance and drafting notes. The creditors' committee has multiple roles during a bankruptcy proceeding, including, among others, acting as a watchdog, sounding board, and investigator. The committee is, therefore, afforded access to information that is normally unavailable to the general public or other (non-member) unsecured creditors. The committee bylaws restrict committee members from disclosing confidential, sensitive, proprietary, nonpublic, or privileged information (often collectively referred to as protected information) to third parties, subject to certain exceptions. The creditors' committee may also enter into separate confidentiality agreements with the debtors or other parties. Committee members are, among other things, limited in the use and communication of certain sensitive, proprietary, nonpublic, confidential, or privileged information (generally referred to as confidential or protected information) gained in their capacity as members of the creditors' committee. The scope and terms of the committee members' confidentiality obligations depend on the specific stipulations and definitions within the applicable confidentiality agreements and the creditors' committee's by-laws. Committee members can generally expect to be restricted from making unauthorized disclosures of protected information and using such information to advance their own self-interests or gain a business advantage against the debtor or at the expense of other general unsecured creditors. Committee members are often precluded from obtaining information on a particular matter or attending meetings and voting where there is a potential for, or the appearance of, a conflict of interest or personal gain. For more and related information, see Creditors' Committee Formation and Operating Procedures and Creditors’ Committees' Roles in Bankruptcy. For a form by-laws, see Creditors’ Committee By-laws.