-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, G3hlytL7UagyPXOl4VQjU1FUKoQ+u+1AQqrdSu308PjUTkujmNCVeur9HqusznO6 WYpn96Ga3qefsuGUlNbtrQ== 0000950127-06-000510.txt : 20060829 0000950127-06-000510.hdr.sgml : 20060829 20060829171638 ACCESSION NUMBER: 0000950127-06-000510 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20060829 DATE AS OF CHANGE: 20060829 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DELPHI CORP CENTRAL INDEX KEY: 0001072342 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLE PARTS & ACCESSORIES [3714] IRS NUMBER: 383430473 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56957 FILM NUMBER: 061063309 BUSINESS ADDRESS: STREET 1: 5725 DELPHI DRIVE CITY: TROY STATE: MI ZIP: 48098 BUSINESS PHONE: 248-813-2000 MAIL ADDRESS: STREET 1: 5725 DELPHI DRIVE CITY: TROY STATE: MI ZIP: 48098 FORMER COMPANY: FORMER CONFORMED NAME: DELPHI AUTOMOTIVE SYSTEMS CORP DATE OF NAME CHANGE: 19981020 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: APPALOOSA MANAGEMENT LP CENTRAL INDEX KEY: 0001006438 IRS NUMBER: 223220835 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 26 MAIN ST STREET 2: 1ST FLOOR CITY: CHATHAM STATE: NJ ZIP: 07928 BUSINESS PHONE: 9737017000 MAIL ADDRESS: STREET 1: 26 MAIN ST STREET 2: 1ST FLOOR CITY: CHATAM STATE: NJ ZIP: 07928 SC 13D/A 1 sc_13da.txt AMENDMENT NO. 2 TO SCHEDULE 13D ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- SCHEDULE 13D/A (Amendment No. 2) UNDER THE SECURITIES EXCHANGE ACT OF 1934 DELPHI CORPORATION ------------------ (Name of Issuer) Common Stock, $0.01 Par Value Per Share --------------------------------------- (Title of Class of Securities) 247126105 -------------- (CUSIP Number) Kenneth Maiman Appaloosa Management L.P. 26 Main Street, First Floor Chatham, NJ 07928 (973) 701-7000 --------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) August 25, 2006 (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. ================================================================================ Page 1 of 11 SCHEDULE 13D - ------------------- CUSIP No. 247126105 - ------------------- - ---- -------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS Appaloosa Investment Limited Partnership I I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) 22-3220838 - ---- -------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - ---- -------------------------------------------------------------------------- 3 SEC USE ONLY - ---- -------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ---- -------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ---- -------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ---- ---------------------------- -------------------------------------------- NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY OWNED BY 0 EACH REPORTING PERSON WITH ---- -------------------------------------------- 8 SHARED VOTING POWER 27,716,000 ---- -------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 ---- -------------------------------------------- 10 SHARED DISPOSITIVE POWER 27,716,000 - ---- ---------------------------- -------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 27,716,000 - ---- -------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ---- -------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.93% - ---- -------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - ---- -------------------------------------------------------------------------- Page 2 of 11 SCHEDULE 13D - ------------------- CUSIP No. 247126105 - ------------------- - ---- -------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS Palomino Fund Ltd. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) 98-0150431 - ---- -------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - ---- -------------------------------------------------------------------------- 3 SEC USE ONLY - ---- -------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ---- -------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ---- -------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands - ---- ---------------------------- -------------------------------------------- NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLYOWNED BY EACH 0 REPORTING PERSON WITH ---- -------------------------------------------- 8 SHARED VOTING POWER 24,284,000 ---- -------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 ---- -------------------------------------------- 10 SHARED DISPOSITIVE POWER 24,284,000 - ---- ---------------------------- -------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 24,284,000 - ---- -------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ---- -------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.32% - ---- -------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - ---- -------------------------------------------------------------------------- Page 3 of 11 SCHEDULE 13D - ------------------- CUSIP No. 247126105 - ------------------- - ---- -------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS Appaloosa Management L.P. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) 22-3220835 - ---- -------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - ---- -------------------------------------------------------------------------- 3 SEC USE ONLY - ---- -------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ---- -------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ---- -------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ---- ---------------------------- -------------------------------------------- NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY OWNED BY 0 EACH REPORTING PERSON WITH ---- -------------------------------------------- 8 SHARED VOTING POWER 52,000,000 ---- -------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 ---- -------------------------------------------- 10 SHARED DISPOSITIVE POWER 52,000,000 - ---- ---------------------------- -------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 52,000,000 - ---- -------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ---- -------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.25% - ---- -------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - ---- -------------------------------------------------------------------------- Page 4 of 11 SCHEDULE 13D - ------------------- CUSIP No. 247126105 - ------------------- - ---- -------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS Appaloosa Partners Inc. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) 22-3220833 - ---- -------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - ---- -------------------------------------------------------------------------- 3 SEC USE ONLY - ---- -------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ---- -------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ---- -------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ---- ---------------------------- -------------------------------------------- NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY OWNED BY 0 EACH REPORTING PERSON WITH ---- -------------------------------------------- 8 SHARED VOTING POWER 52,000,000 ---- -------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 ---- -------------------------------------------- 10 SHARED DISPOSITIVE POWER 52,000,000 - ---- ---------------------------- -------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 52,000,000 - ---- -------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ---- -------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.25% - ---- -------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - ---- -------------------------------------------------------------------------- Page 5 of 11 SCHEDULE 13D - ------------------- CUSIP No. 247126105 - ------------------- - ---- -------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS David A. Tepper I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) - ---- -------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - ---- -------------------------------------------------------------------------- 3 SEC USE ONLY - ---- -------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ---- -------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ---- -------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America - ---- ---------------------------- -------------------------------------------- NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY OWNED BY 0 EACH REPORTING PERSON WITH ---- -------------------------------------------- 8 SHARED VOTING POWER 52,000,000 ---- -------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 ---- -------------------------------------------- 10 SHARED DISPOSITIVE POWER 52,000,000 - ---- ---------------------------- -------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 52,000,000 - ---- -------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ---- -------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.25% - ---- -------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - ---- -------------------------------------------------------------------------- Page 6 of 11 This Amendment No. 2 (this "Amendment") to the Schedule 13D filed on March 16, 2006 by the Reporting Persons (the "Schedule 13D") relates to the common stock, $0.01 par value per share (the "Common Stock"), of Delphi Corporation, a Delaware corporation (the "Issuer"), and is being filed to amend the Schedule 13D as specifically set forth below. The information set forth in the Exhibit to this Amendment is hereby expressly incorporated herein by reference, and the responses to each item of this Amendment are qualified in their entirety by the provisions of such Exhibit. Unless otherwise indicated, all capitalized terms shall have the meanings ascribed to them in the Schedule 13D, and unless otherwise amended hereby, all information previously filed remains in effect. Item 4 is amended and restated as follows: The acquisition of the shares of Common Stock beneficially owned by the Reporting Persons was for investment purposes. On March 15, 2006, in its capacity as a stockholder, Appaloosa Management L.P. ("Appaloosa") sent a letter to the Issuer's board of directors expressing concerns over the current management of the Issuer in connection with the commencement and prosecution of the Issuer's case under chapter 11 of the Bankruptcy Code (the "March 15th Letter"). As described below, Appaloosa has withdrawn this letter. On July 31, 2006, Appaloosa and the Issuer entered into a Confidential Information, Standstill and Nondisclosure Agreement (the "Confidentiality Agreement"). Pursuant to the terms of the Confidentiality Agreement, the Issuer may furnish to Appaloosa certain non-public, confidential and/or proprietary information pertaining to the Issuer which is reasonably necessary in order for Appaloosa to evaluate a possible negotiated business arrangement involving the Issuer in its reorganization case under chapter 11 of the Bankruptcy Code. Subject to customary exceptions, Appaloosa agrees to keep the Evaluation Material (as defined in the Confidentiality Agreement) strictly confidential. Prior to the Release Date (as defined in the Confidentiality Agreement), unless otherwise agreed to by the Issuer in writing, Appaloosa agrees to engage in discussions and negotiate exclusively with the Issuer and its legal and financial advisors with respect to a possible negotiated business arrangement involving the Issuer. In addition, in accordance with the Confidentiality Agreement, Appaloosa has withdrawn the March 15th Letter and agreed not to take certain other actions, as more fully described in the Confidentiality Agreement. On August 25, 2006, Appaloosa and the Issuer entered into an amendment to the Confidentiality Agreement (the "Amendment"), a copy of which is attached hereto as Exhibit 6. Pursuant to the Amendment, in connection with certain confidential information produced and designated as "confidential" or "highly confidential" by the Debtors under various stipulations and protective orders entered into in the Issuer's reorganization case under chapter 11 of the Bankruptcy Code, that has been furnished and may continue to be furnished to certain representatives of Appaloosa (the "Litigation Material"), Appaloosa may use the Litigation Material for a Permitted Purpose (as defined in the Amendment), and the Litigation Material so used will be deemed Evaluation Material (as defined in the Confidentiality Agreement). Appaloosa has had conversations, and plans to have additional conversations, with representatives of the Issuer with respect to a possible negotiated business arrangement involving Page 7 of 11 the Issuer and other matters. No assurances can be given that any possible negotiated business arrangement involving the Issuer will be proposed, or if proposed, consummated. On July 31, 2006, Appaloosa engaged UBS Securities LLC ("UBS") as lead financial adviser and lead capital markets provider and engaged Merrill Lynch & Co. ("Merrill Lynch") as an additional financial adviser, in each case in connection with any potential restructuring, acquisition or other transaction involving the Issuer. Pursuant to the engagement letters, the financial advisers are to be given an opportunity to participate in any debt or equity financing transaction involving the Issuer that is sponsored by Appaloosa and not financed by Appaloosa. Except as described in this Item 4 or otherwise described in this Statement, the Reporting Persons currently have no plans or proposals which relate to or would result in any transaction, event or action enumerated in paragraphs (a) through (j) of Item 4 of the form of Schedule 13D promulgated under the Securities Exchange Act of 1934, as amended. Each of the Reporting Persons reserves the right, in light of its or his ongoing evaluation of the Issuer's financial condition, business, operations and prospects, the market price of the Common Stock, conditions in the securities markets generally, general economic and industry conditions, its or his business objectives and other relevant factors, to change its or his plans and intentions at any time, as it or he deems appropriate. In particular, and without limiting the generality of the foregoing (but subject to the terms of the Confidentiality Agreement), any one or more of the Reporting Persons (and their respective affiliates) reserves the right, in each case subject to any applicable limitations imposed on the sale of any of their Common Stock by the Securities Act of 1933, as amended, or other applicable law, to (i) purchase additional shares of Common Stock or other securities of the Issuer, (ii) sell or transfer shares of Common Stock or other securities beneficially owned by them from time to time in public or private transactions and (iii) cause any of the Reporting Persons to distribute in kind to their respective stockholders, partners or members, as the case may be, shares of Common Stock or other securities owned by such Reporting Persons. Item 6 is amended and restated as follows: On July 31, 2006, Appaloosa and the Issuer entered into a Confidential Information, Standstill and Nondisclosure Agreement. Harbinger Capital Partners Master Fund I, Ltd. ("Harbinger") is also a party to the Confidentiality Agreement. On July 31, 2006, Appaloosa engaged UBS as lead financial adviser and lead capital markets provider and engaged Merrill Lynch as an additional financial adviser, in each case in connection with any potential restructuring, acquisition or other transaction involving the Issuer. Pursuant to the engagement letters, the financial advisers are to be given an opportunity to participate in any debt or equity financing transaction involving the Issuer that is sponsored by Appaloosa and not financed by Appaloosa. Harbinger is also a party to these engagement letters. On August 25, 2006, Appaloosa and the Issuer entered into an amendment to the Confidential Information, Standstill and Nondisclosure Agreement, a copy of which is attached hereto as Exhibit 6. Harbinger is also a party to such amendment. Page 8 of 11 The Reporting Persons disclaim membership in a "group" (within the meaning of Section 13(d) of the Securities Exchange Act of 1934) with any of the other parties to the agreements described above. Other than as described in this Statement, to the best knowledge of the Reporting Persons there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons, and between any such persons and any other person, with respect to any securities of the Issuer, including but not limited to, transfer and voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, or a pledge or contingency the occurrence of which would give another person voting power or investment power over the securities of the Issuer. Item 7 is amended to add the following exhibits: Exhibit No. Description - ----------- -------------------------------------------------------------- 6 Amended Confidential Information, Standstill and Nondisclosure Agreement, by and among Appaloosa Management L.P., Harbinger Capital Partners Master Fund I, Ltd. and Delphi Corporation, dated August 25, 2006 Page 9 of 11 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: August 29, 2006 APPALOOSA INVESTMENT LIMITED PARTNERSHIP I By: APPALOOSA MANAGEMENT L.P., Its General Partner By: APPALOOSA PARTNERS INC., Its General Partner By: /s/ David A. Tepper ------------------------ Name: David A. Tepper Title: President PALOMINO FUND LTD. By: APPALOOSA MANAGEMENT L.P., Its Investment Adviser By: APPALOOSA PARTNERS INC., Its General Partner By: /s/ David A. Tepper ------------------------ Name: David A. Tepper Title: President APPALOOSA MANAGEMENT L.P. By: APPALOOSA PARTNERS INC., Its General Partner By: /s/ David A. Tepper ------------------------ Name: David A. Tepper Title: President APPALOOSA PARTNERS INC. By: /s/ David A. Tepper ------------------------ Name: David A. Tepper Title: President Page 10 of 11 /s/ David A. Tepper ------------------------ David A. Tepper Page 11 of 11 EX-99 2 ex-99.txt AMENDMENT Exhibit 6 August 25, 2006 VIA ELECTRONIC MAIL Appaloosa Management L.P. 26 Main Street Chatham, New Jersey 07928 Attn: Mr. David A. Tepper Mr. Ronald M. Goldstein Harbinger Capital Partners Master Fund I, Ltd. c/o 555 Madison Avenue 16th Floor New York, New York 10022 Attn: Mr. Philip A. Falcone AMENDED CONFIDENTIAL INFORMATION, STANDSTILL AND NONDISCLOSURE AGREEMENT Gentlemen: This letter agreement (the "Amended NDA") relates to discussions involving Appaloosa Management L.P. and its affiliates ("Appaloosa") and Harbinger Capital Partners Master Fund I, Ltd. and its affiliates ("Harbinger") (collectively, "you" or "your", it being understood that, unless otherwise determined by Delphi Corporation, Harbinger will communicate with Delphi only through Appaloosa) involving Delphi Corporation ("Delphi"), a debtor and debtor-in-possession in chapter 11 cases (the "Chapter 11 Cases") in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court") concerning possible negotiated business arrangements between you and the Company (defined below). The Amended NDA amends and supersedes the Confidential Information, Standstill and Nondisclosure Agreement, dated July 31, 2006, among Delphi, Appaloosa, and Harbinger. In connection with your interest in and review of certain matters relating to Delphi and its subsidiaries and affiliates (together with their respective officers, directors, employees, agents, affiliates and other representatives, the "Company"), the Company may furnish to you certain non-public, confidential and/or proprietary information pertaining to the August 25, 2006 Company which is reasonably necessary in order for you to evaluate a Transaction (as defined below) and which the Company reasonably determines is not competitively sensitive or legally privileged (such information is anticipated to include the financial presentations generally provided on a regular basis to the Company's statutory committees and/or their advisors relating to the Company's transformation plan which are reasonably necessary in order for you to evaluate a Transaction). Such information, in whole or in part, whether written or oral, together with any analyses, summaries, compilations, studies, forecasts, abstracts or documents prepared during the review of the Company by you or your Representatives (as defined below) which contain, are based upon or otherwise reflect such information, is hereinafter referred to as the "Evaluation Material." The term "Evaluation Material" does not include any information which you demonstrate: (a) previously was available to you on a non-confidential basis or by virtue of your becoming a member, if ever, of an official committee in the Chapter 11 Cases (provided, however, that any information made available to you in your capacity as a member of a statutory committee shall be kept confidential as may be required pursuant to agreements between such statutory committee and the Company and any applicable duties and obligations you may have as a member of such committee); (b) was obtained from a third person which, insofar as you know, following reasonable inquiry, is not subject to any prohibition against disclosure; or (c) is or becomes generally available to the public other than as a result of disclosure by of you or any of your Representatives in violation of this agreement. You will use the Evaluation Material solely for the purpose of: (1) considering a possible negotiated business arrangement in our mutual interest involving the Company in the Chapter 11 Cases (such business arrangement, the "Transaction"), and (2) to the extent such Transaction is acceptable to the Company, implementation of such Transaction, and you will not use the Evaluation Material for any other business or competitive purpose (collectively, the "Permitted Purposes"). Except as required by law, rule or regulation, you will keep the Evaluation Material strictly confidential and will not disclose the Evaluation Material to any person or entity (including any official or unofficial committee in the Chapter 11 Cases), except that you may disclose the Evaluation Material or portions thereof to those of your directors, officers, partners, employees, agents, financial institutions, attorneys, advisors and accountants (collectively, "Representatives") who need to know such information for the purpose of evaluating on your behalf a Transaction and who also execute an acknowledgment wherein they agree to be bound by the confidentiality provisions of this agreement as if they were parties hereto. Without the prior written consent of the Company, neither you nor your Representatives will disclose to any person or entity (including any official or unofficial committee in the Chapter 11 Cases) the fact that the Evaluation Material has been made available or that discussions between the parties concerning a Transaction are taking place or any term, condition or other fact relating to such business arrangement (except as required by law, rule or regulation and subject to any applicable fiduciary duties as a committee member). You will be responsible for any breach of this agreement by you or any of your Representatives. Prior to the earlier of (i) February 15, 2007, (ii) the date on which the Company files a plan of reorganization in the Chapter 11 Cases (a "Plan of Reorganization") in which any party in interest in the Chapter 11 Cases is afforded an opportunity to 2 August 25, 2006 participate, including, without limitation, an opportunity to participate in a rights offering for the equity of the Delphi following emergence from the Chapter 11 Cases but the holders of Delphi equity are not afforded such opportunity, (iii) any date selected by the Company in its discretion following either the filing by you of a pleading in the Chapter 11 Cases or the taking by you of a public position which respect to a matter relating to the Chapter 11 Cases which in either case the Company believes is in opposition to, or inconsistent with, a position the Company has taken or expects to take in the Chapter 11 Cases, and (iv) the fifth business day following notice by you that the Company has not delivered to you previously-requested information (other than information the Company reasonably determines is competitively sensitive or legally privileged) described in such notice unless either such information is not reasonably necessary in order for you to evaluate a Transaction or prior, to such fifth business day, the Company delivers to you such information (such earlier date, the "Release Date"), unless otherwise agreed to by the Company in writing, you agree, in your individual capacity and not as a committee member, if ever applicable, to engage (along with your Representatives) in discussions and negotiate exclusively with the Company and its legal and financial advisors with respect to a Transaction. In addition, you hereby withdraw the letter to the Members of the Board of Directors of Delphi, dated March 15, 2006 (the "March 15 Letter"). You will file an amendment to your Schedule 13D disclosing this Agreement and related matters (including that you have withdrawn the March 15 letter). In addition, certain representatives of Appaloosa have been furnished and may continue to be furnished with certain confidential information produced and designated as "confidential" or "highly confidential" by the Debtors (the "Litigation Material") under various stipulations and protective orders entered into in these chapter 11 cases by and between Debtors' counsel and counsel for Appaloosa (the "Protective Orders").(1) You have expressed a desire to - ---------- 1 Appaloosa representatives are parties to the following Protective Orders in these cases: (i) Stipulation And Agreed Protective Order Governing Production And Use Of Confidential And Highly Confidential Information In Connection With The Motion Of Appaloosa Management L.P. For An Order Directing The United States Trustee To Appoint An Equity Committee And Objections Filed Thereto, by and between Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden"), as counsel for Delphi and certain of its subsidiaries and affiliates, debtors and debtors-in-possession in these chapter 11 cases (the "Debtors"), and White & Case LLP ("W & C"), as counsel for Appaloosa, dated January 31, 2006 (Docket No. 1998); (ii) Stipulation And Agreed Protective Order Governing Production And Use Of Confidential And Highly Confidential Information In Connection With The Motion For Order Under 11 U.S.C. Section 363(b) And Fed. R. Bankr. P. 6004 Approving Debtors' Human Capital Hourly Attrition Programs, by and between Skadden, as counsel for the Debtors, and W & C, as counsel for Appaloosa, dated April 5, 2006 (Docket No. 3125); (iii) Stipulation And Agreed Protective Order Governing Production And Use Of Confidential And Highly Confidential Information In Connection With The Motion For Order Under 11 U.S.C. Section 1113(c) Authorizing Rejection Of Collective Bargaining Agreements And Under 11 U.S.C. Section 1114(g) Authorizing Modification Of Retiree Welfare Benefits And Objections Filed Thereto, by and between Skadden, as counsel for the Debtors, and W & C, as counsel for Appaloosa and Wexford Capital LLC, dated May 5, 2006 (Docket No. 3706); (iv) Stipulation And Agreed Protective Order, among, Skadden, as counsel for the Debtors, Weil, Gotshal & Manges LLP, as counsel for General Motors Corporation, Latham & Watkins LLP, as counsel for the Official Committee of Unsecured Creditors, Fried, Frank, Harris, Shriver & Jacobson LLP, as counsel for the Official Committee of Equity Security Holder (Retention Subject to Court (cont'd) 3 August 25, 2006 review the Litigation Material for a Permitted Purpose. To the extent you wish to use the Litigation Material for a Permitted Purpose then: (a) the Company consents to the sharing of the Litigation Material by Appaloosa representatives subject to the Protective Orders with Appaloosa and Harbinger, (b) the Litigation Material so used will be deemed Evaluation Material as defined herein, and (c) such Litigation Material shall be subject to the terms of the Amended NDA when used for a Permitted Purpose. Such Litigation Material shall not be subject to the Amended NDA, but shall remain subject to terms of any applicable Protective Order, when used by Appaloosa's representatives for all other purposes. You hereby represent that you have, and will have at all times after the execution of this agreement and prior to the Release Date, a "Net Long Position" (as defined below) with respect to the Company. At the Company's request you agree promptly to provide the Company with reasonable information which supports the initial representation in the prior sentence and your continued compliance with the prior sentence and the next sentence. In addition, prior to the Release Date, you will not sell, dispose of or otherwise transfer any equity or debt securities, equity or fixed income related credit derivatives or other instruments (including put equivalent and call equivalent instruments) issued by, guaranteed by or relating to the Company. With respect to the Company, a "Net Long Position" means that, on an aggregate basis with respect to all equity or debt securities, equity or fixed income related credit derivatives or other instruments (including put equivalent and call equivalent instruments) issued by, guaranteed by or relating to the Company, your portfolio of such securities, derivatives and other instruments would be reasonably likely to gain in value if an event occurred which would be reasonably likely to cause the credit quality of the Company to improve. In the event that you or any of your Representatives are legally required (by deposition, interrogatories, requests for documents, subpoena, civil investigation demand or similar process) to disclose any of the Evaluation Material, or if you or any of your Representatives are legally required (by deposition, interrogatories, requests for documents, subpoena, civil investigation demand or similar process) to disclose the fact that the Evaluation Material has been made available or that discussions between the parties are taking place or any - ---------- (cont'd from previous page) Approval), and W & C, as counsel for the Ad Hoc Committee of Equity Security Holders, dated June 12, 2006 (Docket No. 4156); (v) Stipulation And Agreed Protective Order Governing Production And Use Of Confidential And Highly Confidential Information In Connection With The Motion Under 11 U.S.C. Section 363(b) And Fed. R. Bankr. P. 6004 Approving (I) Supplement To UAW Special Attrition Program, and (II) IUE-CWA Special Attrition Program, by and between Skadden, as counsel for the Debtors, and W & C, as counsel for Appaloosa, dated June 29, 2006 (Docket No. 4410); and (vi) Stipulation And Agreed Protective Order Governing Production And Use Of Confidential And Highly Confidential Information In Connection With The Motion For Order Under 11 U.S.C. Section 365 And Fed. R. Bankr. P. 6006 Authorizing Rejection Of Certain Executory Contracts With General Motors Corporation And Objections Filed Thereto has been entered into by and between Skadden, as counsel for the Debtors, and W & C, as counsel for Appaloosa and Wexford (Docket No. TBD). 4 August 25, 2006 other fact relating to a Transaction, you will provide to the extent practicable, the Company with prompt prior written notice of such requirement so that the Company may (a) seek a protective order or other appropriate remedy or (b) in its sole discretion, waive compliance with the terms of this agreement. If a protective order or other remedy is not obtained within a reasonable period of time, or the Company waives compliance with the terms of this agreement, you or your Representatives, as applicable, will disclose only that which you or your Representatives are legally required to disclose or which is necessary to avoid sanction for contempt of court and you or your Representatives, as applicable, will exercise commercially reasonable efforts (which efforts will consist of at least the efforts you undertake in connection with ensuring the confidential treatment of your non-public, confidential and/or proprietary information) to ensure confidential treatment of (x) the Evaluation Material, (y) the fact that the Evaluation Material has been made available or that discussions between the parties are taking place, and (z) any other fact you are prohibited from disclosing pursuant to this agreement. If we do not proceed with a Transaction, or if the Company so requests, you will promptly return to the Company all copies (including originals) of the Evaluation Material in your possession or in the possession of your Representatives, and you will promptly destroy all Evaluation Material which constitutes copies (including originals) of any analyses, studies, abstracts or other documents prepared by you or your Representatives or for your or your Representatives' use, and any such destruction shall be certified in writing to us by a duly authorized Representative of yours. Notwithstanding your obligations as described in the preceding sentence, if the Evaluation Material also is Litigation Material, then with respect to Appaloosa representatives also subject to a Protective Order, the return and/or destruction of such material shall be governed by the applicable Protective Order, and not this Amended NDA. Notwithstanding the return or destruction of Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality hereunder for the period commencing on the date hereof through the first anniversary of the date of the consummation of a Plan of Reorganization. You understand and agree that except as set forth in written definitive agreements in connection with a Transaction, the Company has not made or is not making any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and nor will the Company or its affiliates or any of their respective officers, directors, employees, agents, affiliates, attorneys, advisors or accountants have any liability to you or any other person or entity relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. For the period commencing on the date hereof through the Release Date (unless the Company is determined by a final order of the Bankruptcy Court to have failed to perform in all material respects all of its obligations hereunder), (a) you will not seek, and will cause each of your affiliates not to, directly or indirectly, knowingly seek, or solicit or induce, or attempt to 5 August 25, 2006 solicit or induce a third party to seek, or support a third party that may seek or is seeking to shorten or terminate the Company's exclusive periods (the "Exclusive Periods") to propose and/or solicit a Plan of Reorganization; provided, however, that if you become a member of an official committee in the Chapter 11 Cases, then in your capacity as a member of such a committee, you may participate in committee discussions, committee meetings and committee votes with respect to the foregoing matters consistent with your fiduciary duties as a member of such committee and (b) you will not take, and will cause each of your affiliates not to take, directly or indirectly, any action with respect to the matters described in the March 15 Letter. Until the later of the Release Date and the date upon which you are no longer in possession of material, non-public information about the Company (unless the Company is determined by a final order of the Bankruptcy Court to have failed to perform in all material respects all of its obligations hereunder), without the prior written consent of the Company, you will not, and will cause each of your affiliates and Representatives (in their capacity as such) not to, singly or as part of a group, in any manner, directly or indirectly: (i) participate in any solicitation of proxies or become a participant in any election contest with respect to the Company, (ii) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to Delphi's common stock, and (iii) sell, dispose of or otherwise transfer any equity securities of the Company ("Equity Securities"), any debt securities of the Company ("Debt Securities"), or assets of or claims against the Company, or any rights to acquire any Equity Securities, Debt Securities, or assets of or claims against the Company. In addition, nothing in this letter agreement results in or will result in a modification, amendment, waiver of any provision in the (i) the Final Order Under 11 USC Sections 105, 362 and 541 FED. R. BANKR. P. 3001 dated January 6, 2006 (A) Establishing Notification Procedures Applicable to Substantial Holders of Claims and Equity Securities and (B) Establishing Notification and Hearing Procedures for Trading in Claims and Equity Securities, (ii) the letter agreements, dated November 22, 2005 and January 9, 2006, between the Company and Palomino Fund, (iii) the letter agreements, dated December 5, 2005 and January 9, 2006 between the Company and Appaloosa Investment Partnership I, and (iv) the letter agreements, both dated January 9, 2006, between the Company and Appaloosa Management LP. You agree that money damages would not be a sufficient remedy for any breach of this agreement by you or your Representatives and that, in addition to all other remedies, the Company will be entitled to equitable relief, including specific performance and injunctive or other equitable relief, in the event of any breach or threatened breach of any provision of this agreement. In the event of litigation relating to this agreement, each party shall pay its own expenses. You acknowledge and agree that the Company is free to terminate discussions and negotiations with you at any time after the Release Date and for any reason (provided, however, that the Company will not be limited in any way by the terms of this letter agreement in 6 August 25, 2006 allocating, prioritizing and directing its resources and personnel, including its employees, agents and representatives, to discussions and negotiations with other parties in connection with the Chapter 11 Cases or other matter) and unless and until a written definitive agreement concerning a Transaction has been executed and approved by the Bankruptcy Court, neither the Company nor any of our affiliates or any of our or their respective officers, directors, employees, agents, affiliates, attorneys, advisors or accountants will have any liability to you with respect to any business arrangement, whether by virtue of this agreement, any other written or oral expression with respect to any Transaction or otherwise. You acknowledge that you and your Representatives may receive material non-public information in connection with your evaluation of any Transaction and you are aware (and you will so advise your Representatives) that the United States securities laws impose restrictions on trading in securities when in possession of such information. The Company understands that you would prefer not to be in possession of material non-public information at the time a Plan of Reorganization becomes effective. In this regard, the Company will use commercially reasonable efforts to avoid providing you with information that the Company expects is likely to be material non-public information as of the effective date of such a Plan of Reorganization and you shall follow appropriate procedures to screen information the Company provides to you to avoid being in possession or having knowledge of material non-public information as of such date. If, however, you believe that you are in possession of material non-public information at the time a Plan of Reorganization becomes effective, you may request the Company to make appropriate public disclosure such that the information would no longer be non-public, and the Company will make such public disclosure if the Company reasonably determines that such public disclosure would be in the best interests of the Company and its constituents. If information subject to a claim of attorney-client privilege, work product doctrine or any other ground on which production of such information should not be made is nevertheless inadvertently produced by the Company to you or your Representatives, such production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of privilege, work product or other ground for withholding production to which the Company would otherwise be entitled. If a claim of inadvertent production is made pursuant to this paragraph with respect to information then in the custody of you or your Representatives, then you or your Representatives, as the case may be, shall, upon request, promptly return to the Company that material (including all copies thereof) as to which the claim of inadvertent production has been made, and you and your Representatives shall not further use such information for any purpose. 7 August 25, 2006 Appaloosa and Harbinger are acting independently and not in concert with respect to this agreement and nothing in this agreement shall be construed to suggest that Appaloosa and Harbinger are in any manner acting together with respect to the Company or any Transaction. This agreement is solely for the benefit of the Company and its respective successors and assigns. The rights of the Company under this agreement may be assigned in whole or in part to any purchaser of the Company or any substantial part thereof, which purchaser shall be entitled to enforce this agreement to the same extent and in the same manner as the Company is entitled to enforce this agreement. No failure or delay by the Company in the exercise of any right, power or privilege hereunder will operate as a waiver thereof. This agreement can only be modified or waived in writing. Notices required or permitted by this Agreement shall be given by certified mail, return receipt requested, overnight courier service or facsimile to the following notice addresses: A. For the Company: David M. Sherbin, Esq. Vice President, General Counsel and Chief Compliance Officer Delphi Corporation 5725 Delphi Drive Troy, Michigan 48098-2815 Telephone: (248) 813-2000 Facsimile: (248) 813-2670 with a copy to: John Wm. Butler, Jr., Esq. Skadden, Arps, Slate, Meagher & Flom LLP 333 West Wacker Drive Chicago, IL 60606-1285, Suite 2100 Telephone: (312) 407-0700 Facsimile: (312) 407-0411 8 August 25, 2006 B. For Appaloosa Management L.P. Appaloosa Management L.P. 26 Main Street Chatham, New Jersey 07928 Attn: Mr. David A. Tepper Mr. Ronald M. Goldstein Telephone: (973) 701-7000 Facsimile: (973) 701-7055 C. For Harbinger Capital Partners Master Fund I, Ltd. Harbinger Capital Partners Master Fund I, Ltd. c/o 555 Madison Avenue 16th Floor New York, New York 10022 Attn: Mr. Philip A. Falcone Telephone: (212) 521-6970 Facsimile: (212) 508-3721 with a copy to: Harbinger Capital Partners Master Fund I, Ltd. One Riverchase Parkway South Birmingham, AL 35244 Attn: Legal Department Telephone: (205) 987-5500 Facsimile: (205) 987-5505 Any proceeding relating to this letter agreement shall be brought in the Bankruptcy Court during the pendency of the Chapter 11 Cases and thereafter in a federal or state court of New York. You and the Company hereby consent to personal jurisdiction in any such action and to service of process by mail, and waive any objection to venue in any such court. This letter shall be governed by the internal laws of the State of New York and shall inure to the benefit of and be binding upon the Company and you and our respective affiliates, successors and assigns, including any successor to the Company or you or substantially all of the Company's or your assets or business. 9 August 25, 2006 Please acknowledge your acceptance of the terms and conditions stated herein by signing and returning this agreement to the Company. DELPHI CORPORATION /s/ John D. Sheehan --------------------------- By: John D. Sheehan Its: Vice President & Chief Restructuring Officer ACCEPTED AND AGREED: APPALOOSA MANAGEMENT L.P. /s/ Ronald Goldstein - ------------------------- By: Ronald Goldstein Its: Partner HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. By: Harbinger Capital Partners Offshore Manager, LLC, as its investment manager /s/ Joel B. Piassick - ------------------------------ By: Joel B. Piassick Its: Executive Vice President 10 -----END PRIVACY-ENHANCED MESSAGE-----