-----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, K6PwO7Kkr2D8l4HlowxM0M/YYUMF7aL+rVP3Br/aFt9E543NxE85CrQMIgxngP72 N/aGQfxH9hqNj3bj45SwOQ== 0000950127-07-000318.txt : 20070515 0000950127-07-000318.hdr.sgml : 20070515 20070515163045 ACCESSION NUMBER: 0000950127-07-000318 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20070515 DATE AS OF CHANGE: 20070515 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: 07853774 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 sc13d-a.txt AMENDMENT NO. 7 TO SCHEDULE 13D ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- SCHEDULE 13D/A (Amendment No. 7) 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) May 10, 2007 (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 22 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) [X] (b) [X](1) - ----- ------------------------------------------------------------------------- 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 0 BY 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 60,195,781(2) - ----- ------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ----- ------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.72%(2) - ----- ------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - ----- ------------------------------------------------------------------------- - ---------- (1) Box (a) is checked with respect to the relationship of the Reporting Persons and Harbinger, Merrill and UBS as described in Item 4 and footnote (2) below. Box (b) is checked with respect to the relationship of the Reporting Persons and the Additional Investors described in Item 4. The Reporting Persons expressly disclaim membership in a group (within the meaning of Section 13(d) of the Securities Exchange Act of 1934) with the Additional Investors. Page 2 of 22 (2) As a result of the proposal and related Investment Agreement and Plan Framework Support Agreement described in Item 4, the Reporting Persons are deemed to be the beneficial owners of shares of the Issuer's common stock beneficially owned by Harbinger, Merrill and UBS. Based on information provided to the Reporting Persons, Harbinger Capital Partners Master Fund I, Ltd. and its related entities beneficially own 26,450,000 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,490,459 shares and UBS Securities LLC beneficially owns 4,539,322 shares. Page 3 of 22 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) [X] (b) [X](1) - ----- ------------------------------------------------------------------------- 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 BENEFICIALLY OWNED 0 BY EACH 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 56,763,781(2) - ----- ------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ----- ------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.1%(2) - ----- ------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - ----- ------------------------------------------------------------------------- - ---------- (1) Box (a) is checked with respect to the relationship of the Reporting Persons and Harbinger, Merrill and UBS as described in Item 4 and footnote (2) below. Box (b) is checked with respect to the relationship of the Reporting Persons and the Additional Investors described in Item 4. The Reporting Persons expressly disclaim membership in a group (within the meaning of Section 13(d) of the Securities Exchange Act of 1934) with the Additional Investors. (2) As a result of the proposal and related Investment Agreement and Plan Framework Support Agreement described in Item 4, the Reporting Persons are deemed to be the beneficial Page 4 of 22 owners of shares of the Issuer's common stock beneficially owned by Harbinger, Merrill and UBS. Based on information provided to the Reporting Persons, Harbinger Capital Partners Master Fund I, Ltd. and its related entities beneficially own 26,450,000 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,490,459 shares and UBS Securities LLC beneficially owns 4,539,322 shares. Page 5 of 22 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) [X] (b) [X](1) - ----- ------------------------------------------------------------------------- 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 0 BY 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 84,479,781(2) - ----- ------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ----- ------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.04%(2) - ----- ------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - ----- ------------------------------------------------------------------------- - ---------- (1) Box (a) is checked with respect to the relationship of the Reporting Persons and Harbinger, Merrill and UBS as described in Item 4 and footnote (2) below. Box (b) is checked with respect to the relationship of the Reporting Persons and the Additional Investors described in Item 4. The Reporting Persons expressly disclaim membership in a group (within the meaning of Section 13(d) of the Securities Exchange Act of 1934) with the Additional Investors. (2) As a result of the proposal and related Investment Agreement and Plan Framework Support Agreement described in Item 4, the Reporting Persons are deemed to be the beneficial Page 6 of 22 owners of shares of the Issuer's common stock beneficially owned by Harbinger, Merrill and UBS. Based on information provided to the Reporting Persons, Harbinger Capital Partners Master Fund I, Ltd. and its related entities beneficially own 26,450,000 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,490,459 shares and UBS Securities LLC beneficially owns 4,539,322 shares. Page 7 of 22 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) [X] (b) [X](1) - ----- ------------------------------------------------------------------------- 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 0 BY 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 84,479,781(2) - ----- ------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ----- ------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.04%(2) - ----- ------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - ----- ------------------------------------------------------------------------- - ---------- (1) Box (a) is checked with respect to the relationship of the Reporting Persons and Harbinger, Merrill and UBS as described in Item 4 and footnote (2) below. Box (b) is checked with respect to the relationship of the Reporting Persons and the Additional Investors described in Item 4. The Reporting Persons expressly disclaim membership in a group (within the meaning of Section 13(d) of the Securities Exchange Act of 1934) with the Additional Investors. Page 8 of 22 (2) As a result of the proposal and related Investment Agreement and Plan Framework Support Agreement described in Item 4, the Reporting Persons are deemed to be the beneficial owners of shares of the Issuer's common stock beneficially owned by Harbinger, Merrill and UBS. Based on information provided to the Reporting Persons, Harbinger Capital Partners Master Fund I, Ltd. and its related entities beneficially own 26,450,000 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,490,459 shares and UBS Securities LLC beneficially owns 4,539,322 shares. Page 9 of 22 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) [X] (b) [X](1) - ----- ------------------------------------------------------------------------- 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 0 BY 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 84,479,781(2) - ----- ------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ----- ------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.04%(2) - ----- ------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - ----- ------------------------------------------------------------------------- - ---------- (1) Box (a) is checked with respect to the relationship of the Reporting Persons and Harbinger, Merrill and UBS as described in Item 4 and footnote (2) below. Box (b) is checked with respect to the relationship of the Reporting Persons and the Additional Investors described in Item 4. The Reporting Persons expressly disclaim membership in a group (within the meaning of Section 13(d) of the Securities Exchange Act of 1934) with the Additional Investors. Page 10 of 22 (2) As a result of the proposal and related Investment Agreement and Plan Framework Support Agreement described in Item 4, the Reporting Persons are deemed to be the beneficial owners of shares of the Issuer's common stock beneficially owned by Harbinger, Merrill and UBS. Based on information provided to the Reporting Persons, Harbinger Capital Partners Master Fund I, Ltd. and its related entities beneficially own 26,450,000 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,490,459 shares and UBS Securities LLC beneficially owns 4,539,322 shares. Page 11 of 22 This Amendment No. 7 (this "Amendment") to the Schedule 13D (the "Initial Schedule 13D") initially filed on March 16, 2006 by the Reporting Persons (as defined in the Initial Schedule 13D), as amended on August 1, 2006, August 29, 2006, December 19, 2006, January 18, 2007, March 2, 2007 and March 12, 2007, 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 Reporting Persons' previously-filed Schedule 13D as specifically set forth below. Certain information contained in this Schedule 13D/A relates to share ownership of persons other than the Reporting Persons. The Reporting Persons expressly disclaim any liability for any such information and for any other information provided in this Amendment that does not expressly pertain to a Reporting Person, as such term is defined in Item 2 of the Initial Schedule 13D. The information set forth in the Exhibits 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 Exhibits. Unless otherwise indicated, all capitalized terms shall have the meanings ascribed to them in the Initial 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 that are currently 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 (the "March 15th 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 (the "Bankruptcy Proceedings") under the United States Bankruptcy Code, 11 U.S.C. Sections 101-1330 as amended and in effect on October 8, 2005 (the "Bankruptcy Code"). 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"). The Confidentiality Agreement was attached as Exhibit 3 to the Schedule 13D/A filed on August 1, 2006. 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. Page 12 of 22 On August 25, 2006, Appaloosa and the Issuer entered into an amendment to the Confidentiality Agreement (the "Amendment"). The Amendment was attached as Exhibit 6 to the Schedule 13D/A filed on August 28, 2006. 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). 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. The engagement letters were attached as Exhibits 4 and 5, respectively, to the Schedule 13D/A filed on August 1, 2006. Proposal Letter On December 18, 2006, A-D Acquisition Holdings, LLC ("ADAH") (an affiliate of Appaloosa), Dolce Investments, LLC ("Dolce") (an affiliate of Cerberus Capital Management L.P. ("Cerberus")), Harbinger Del-Auto Investment Company Ltd. ("Del-Auto") (an affiliate of Harbinger Capital Partners Master Fund I, Ltd. ("Harbinger")), Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill") and UBS delivered to the Issuer a proposal, which the Issuer accepted, for a potential investment of up to $3.4 billion in the aggregate in preferred and common equity of the reorganized Issuer and a proposed reorganization framework for the Issuer (the "Proposal"). Each of ADAH, Dolce, Del-Auto, Merrill and UBS are referred to herein as the "Investors." A copy of the Proposal was attached as Exhibit 7 to the Schedule 13D/A filed on December 19, 2006. According to the Proposal, the Investors would enter into an Equity Purchase and Commitment Agreement (the "Investment Agreement") providing for the potential equity investment. The Proposal will terminate if, on or before January 22, 2007, (x) the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court") does not issue an order reasonably satisfactory to the Investors approving and authorizing the Issuer to enter into the Investment Agreement and certain other matters, (y) the Issuer has not entered into the Investment Agreement or (z) any of the Investors determines in its sole discretion that any of the conditions contained in the Investment Agreement are incapable of being satisfied or that any of the Investors is entitled to exercise a termination right under the Investment Agreement. Equity Investment Under the terms of the Investment Agreement, on the terms and subject to the conditions of the Investment Agreement, the Investors would purchase an aggregate of $1.2 billion of Page 13 of 22 convertible preferred stock and approximately $200 million of common stock in the reorganized Issuer as follows: (i) each Investor would purchase (A) for $35.00 per share, each Investor's proportionate share of 6,300,000 shares of the reorganized Issuer's new common stock (the "Direct Subscription Shares") and (B) for $35.00 per share, each Investor's proportionate share of the reorganized Issuer's new Series B Senior Convertible Preferred Stock (the "Series B Preferred Stock"); (ii) Dolce would purchase for $35.00 per share, 8,571,429 shares of the reorganized Issuer's new Series A-1 Senior Convertible Preferred Stock (the "Series A-1 Preferred Stock"); and (iii) ADAH would purchase for $35.00 per share, 8,571,429 shares of the reorganized Issuer's new Series A-2 Senior Convertible Preferred Stock (the "Series A-2 Preferred Stock", and together with the Series A-1 Preferred Stock, the "Series A Preferred Stock"). The number of Direct Subscription Shares and Series B Preferred Stock to be purchased by each Investor is set forth on Schedule 2 to the Investment Agreement. Additionally, on the terms and subject to the conditions of the Investment Agreement, the Investors would purchase any unsubscribed shares ("Unsubscribed Shares") of the reorganized Issuer's new common stock in connection with an approximately $2.0 billion rights offering (the "Rights Offering") that would be made available to holders of Common Stock as of a record date to be determined by the Issuer. In accordance with the Investment Agreement, the Issuer would distribute certain rights to holders of Common Stock to acquire new common stock of the reorganized Issuer subject to the effectiveness of a registration statement to be filed with the U.S. Securities and Exchange Commission, approval of the Bankruptcy Court and satisfaction of other terms and conditions. The rights, which would be transferable by the original eligible holders, would permit holders to purchase their pro rata share of new common stock of the reorganized Issuer at $35.00 per share. Altogether, the Investors could invest up to an aggregate of $3.4 billion in the reorganized Issuer. The Investment Agreement is subject to the completion of due diligence to the satisfaction of the Investors in their sole discretion, satisfaction or waiver of numerous other conditions (including the Issuer's achievement of consensual agreements with its U.S. labor unions and General Motors Corporation ("GM") that are acceptable to the Investors in their sole discretion) and the non-exercise by either the Issuer or the Investors of certain termination rights, all of which are more fully described in the Investment Agreement. The Investors would be entitled to payment of certain commitment fees and an alternate transaction fee at the times and under the circumstances set forth in the Investment Agreement. Plan of Reorganization Framework The Investors, the Issuer and GM also executed on December 18, 2006, a Plan Framework Support Agreement (the "Plan Framework Support Agreement") which contains terms pursuant to which the parties agree to support confirmation and consummation of a plan of reorganization for the Issuer which will be based on the terms contained in the Plan Framework Support Agreement (the "Plan Framework"). A copy of the Plan Framework Support Agreement was attached as Exhibit 8 to the Schedule 13D/A filed on December 19, 2006. The Plan Framework provides for, among other things, the distributions to be made to creditors and stockholders, the treatment of GM's claims against the Issuer, the resolution of certain pension funding issues and the corporate governance of the reorganized Issuer. The Plan Framework Support Agreement as well as the economics and structure of the Plan Framework itself are Page 14 of 22 conditioned on reaching consensual agreements with the Issuer's U.S. labor unions and GM. Both the Issuer and the Investors are permitted to terminate the Investment Agreement (which terminates the Plan Framework Support Agreement) if consensual agreements are not reached with the Issuer's U.S. labor unions and GM by Jan. 31, 2007. Corporate Governance Structure The Investment Agreement and the Plan Framework Support Agreement also include certain corporate governance provisions for the reorganized Issuer. Under the terms of the proposed plan, the reorganized Issuer would be governed by a 12 member board of directors, two of whom would be a new Executive Chairman and a new Chief Executive Officer and President. Pursuant to the term sheet for preferred stock attached as an Exhibit to the Investment Agreement (the "Preferred Term Sheet") and Plan Framework Support Agreement, Rodney O'Neal would be the Chief Executive Officer and President of the Issuer. A five member selection committee, consisting of John D. Opie, the lead independent director of the Issuer's current board of directors, a representative of each of the Issuer's two statutory committees and a representative of each of Appaloosa and Cerberus will select the company's post-emergence Executive Chairman as well as four other directors (one of whom may be from the Issuer's current board of directors). Appaloosa and Cerberus must both concur in the selection of the Executive Chairman, but do not vote on the four other directors. Each of Appaloosa and Cerberus would appoint three board members comprising the remaining six members of the reorganized Issuer's new board of directors. The new board of directors would be required to satisfy all independence requirements imposed by the relevant stock exchange on which the reorganized Issuer's common stock would be traded. Executive compensation for the reorganized Issuer must be on market terms, must be reasonably acceptable to ADAH and Dolce, and the overall executive compensation plan design must be described in the Issuer's disclosure statement and incorporated into the plan of reorganization. The holders of the Series A Preferred Stock will have certain approval rights with respect to certain significant corporate transactions such as incurring debt, transferring assets and engaging in mergers or acquisitions, as more fully described in the Preferred Term Sheet. Subsequent to December 18, 2006 and in connection with the Bankruptcy Proceedings, the Investors and the Issuer agreed to certain modifications to the Investment Agreement, including, but not limited to, modifications to the termination rights of the Issuer and the Investor under the Investment Agreement and the circumstances that would constitute a "change of recommendation" by the Issuer. A copy of the modified Investment Agreement was attached as Exhibit 13 to the Schedule 13D/A filed on January 18, 2007. Furthermore, subsequent to December 18, 2006 and in connection with the Bankruptcy Proceedings, the parties to the Investment Agreement agreed to enter into a Supplement to the Investment Agreement (the "IA Supplement") pursuant to which for so long as the official committee of unsecured creditors of the Issuer in the Bankruptcy Proceedings (the "Creditors' Committee") supports the implementation of the Investment Agreement and the Plan Framework Support Agreement and the transactions contemplated thereby, the parties to the Investment Agreement would agree to certain amendments to the Investment Agreement. In addition, the parties to the Plan Framework Support Agreement agreed to an Amendment and Supplement to the Plan Framework Support Agreement (the "PFSA Amendment and Supplement" and, the Page 15 of 22 PFSA Amendment and Supplement together with the IA Supplement, the "Supplements") pursuant to which (i) the parties to the Plan Framework Support Agreement agreed to certain amendments to the Plan Framework Support Agreement and (ii) for so long as the Creditors' Committee supports the implementation of the Investment Agreement and the Plan Framework Support Agreement and the transactions contemplated thereby, the parties to the Plan Framework Support Agreement would agree to certain additional modifications to the Plan Framework Support Agreement. The IA Supplement involves, among other things, (i) specified procedures for ADAH and Dolce to propose an alternative exit financing and a related termination right for the Issuer and (ii) modification of the Preferred Term Sheet to clarify that on a change of control of the Issuer, the fair market value of the Series B Preferred Stock shall not reflect the value of the governance rights attributable to the Series A Preferred Stock. The PFSA Amendment and Supplement involves, among other things, the following amendments to the Plan Framework Support Agreement that are independent of continued Creditors' Committee support: (i) a prohibition on the ability of the Issuer and the Investors to terminate the Plan Framework Support Agreement after a disclosure statement is approved and (ii) certain provisions related to interest on trade and other unsecured claims. The PFSA Amendment and Supplement also involves, among other things, certain modifications to the Plan Framework Support Agreement that are contingent on continued Creditors' Committee support that relate to the ability of the Creditors' Committee to review and consult with respect to certain documents that will be included as part of the implementation of a plan of reorganization of the Issuer and executive compensation arrangements. Copies of the Supplements were attached as Exhibits 14 and 15 to the Schedule 13D/A filed on January 18, 2007. On January 11 and January 12, 2007, the Bankruptcy Court held a hearing on Delphi's motion for, among other things, the approval of the Investment Agreement, the Plan Framework Support Agreement and the Supplements. On January 12, 2007, the Bankruptcy Court approved such motion and on January 18, 2007, the modified Investment Agreement and the Supplements were executed by the parties thereto. On February 28, 2007, the Issuer and the Investors entered into an amendment (the "Investment Agreement Amendment") to the previously disclosed Investment Agreement. Pursuant to the terms of the Investment Agreement Amendment, the date by which the Issuer, Dolce or ADAH have the right to terminate the Investment Agreement on account of the Issuer not having completed tentative labor agreements with the Issuer's principal U.S. labor unions and a consensual settlement of legacy issues with GM was extended. The Investment Agreement Amendment provides that the day-to-day right to terminate will continue beyond February 28, 2007 through a future date to be established pursuant to a 14 day notice mechanism set forth in the Investment Agreement Amendment. The Issuer, Dolce and ADAH also agreed not to exercise such termination right before March 15, 2007. The Investment Agreement Amendment also extends the deadline to make certain regulatory filings under the federal antitrust laws in connection with the framework transaction. A copy of the Investment Agreement Amendment was attached as Exhibit 16 to the Schedule 13D/A filed on March 2, 2007. On March 7, 2007, ADAH, Dolce, Del-Auto and UBS (the "Initial Investors") and certain third party additional investors (the "Additional Investors") entered into an agreement Page 16 of 22 (the "Additional Investor Agreement"), dated as of March 5, 2007, pursuant to which, on the terms and conditions contained therein, the Initial Investors committed to sell and the Additional Investors committed to buy a portion of any Direct Subscription Shares and Unsubscribed Shares that may be purchased by the Initial Investors pursuant to the Investment Agreement. The aggregate maximum amount of Direct Subscription Shares and Unsubscribed Shares that may be sold pursuant to the Additional Investor Agreement would be approximately 44,857,166, assuming that the Investors are required to purchase all the shares of Common Stock pursuant to the Rights Offering. Further, the Additional Investor Agreement provides that the Initial Investors will share with the Additional Investors a portion of any Standby Commitment Fee and/or Alternate Transaction Fee (as such terms are defined in the Investment Agreement) received by the Initial Investors. The Initial Investors expressly disclaim membership in a group (within the meaning of Section 13(d) of the Securities Exchange Act of 1934) with the Additional Investors. A copy of the form of Additional Investor Agreement was attached as Exhibit 17 to the Schedule 13D/A filed on March 12, 2007. On May 10, 2007, pursuant to Section 9(a)(v) of the Investment Agreement, Appaloosa and the issuer entered into an amendment to the Confidentiality Agreement (the "Second Amendment"). A copy of the Second Amendment is attached hereto as Exhibit 18. 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. Subject to the terms of the Investment Agreement and the Plan Framework Support Agreement, 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. Page 17 of 22 This Amendment is not a solicitation for votes on the Issuer's plan of reorganization. No disclosure statement has been approved by the Bankruptcy Court for the Issuer's plan of reorganization. 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 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. Harbinger is also a party to such amendment. On December 18, 2006 (i) the Investors delivered the Proposal to the Issuer, which the Issuer accepted and (ii) the Investors, the Issuer and GM entered into the Plan Framework Support Agreement. Concurrent with the delivery of the Proposal, Appaloosa, Harbinger and Merrill entered into a limited partnership agreement (the "Limited Partnership Agreement") in connection with the establishment of DEL A-2 L.P. (the "Partnership"). Pursuant to the Limited Partnership Agreement, an entity wholly-owned by AMLP is the general partner of the Partnership. Merrill and entities affiliated with Appaloosa and Harbinger will be limited partners of the Partnership. Harbinger provided a commitment letter regarding its affiliate's obligations as a limited partner. Pursuant to the Limited Partnership Agreement, if Series A-2 Preferred Stock is purchased by ADAH, it would be sold to the Partnership at a purchase price equal to that paid by ADAH and the Limited Partners would make an investment in the Partnership, and be entitled to participate in distributions on account of, and proceeds in respect of, the Series A-2 Preferred Stock. In addition, concurrent with the delivery of the Proposal, (1) Appaloosa and Cerberus entered into an agreement regarding the allocation of certain potential liabilities in connection with any breach of the Investment Agreement and (2) Appaloosa, Harbinger, UBS and Merrill entered into a similar agreement. On January 18, 2007, after approval by the Bankruptcy Court, (i) the Investors and the Issuer entered into the Investment Agreement and the IA Supplement and (ii) the Investors, the Issuer and GM entered into the PFSA Amendment and Supplement. On February 28, 2007, the Investors and the Issuer entered into the Investment Agreement Amendment. Page 18 of 22 On March 7, 2007, the Initial Investors and the Additional Investors entered into the Additional Investor Agreement. On May 10, 2007, Appaloosa and the Issuer entered into an amendment to the Confidential Information, Standstill and Nondisclosure Agreement. Harbinger is also a party to such amendment. * * * 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. Page 19 of 22 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: May 15, 2007 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 20 of 22 /s/ David A. Tepper ---------------------------- David A. Tepper Page 21 of 22 EXHIBIT INDEX Exhibit No. Description - ----------- ------------------------------------------------------------------ 18 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 May 10, 2007 Page 22 of 22 EX-99 2 ex99.txt SECOND AMENDED AGREEMENT EXECUTION COPY May 10, 2007 VIA ELECTRONIC MAIL Appaloosa Management L.P. 26 Main Street Chatham, New Jersey 07928 Attn: Mr. David A. Tepper Mr. Jim Bolin Harbinger Capital Partners Master Fund I, Ltd. c/o 555 Madison Avenue 16th Floor New York, New York 10022 Attn: Mr. Philip A. Falcone SECOND AMENDED CONFIDENTIAL INFORMATION, STANDSTILL AND NONDISCLOSURE AGREEMENT Gentlemen: This letter agreement (the "Second 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 Second Amended NDA amends and supersedes the Amended Confidential Information, Standstill and Nondisclosure Agreement, dated August 25, 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 May 10, 2007 furnish to you certain non-public, confidential and/or proprietary information pertaining to the 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 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 2 May 10, 2007 Cases is afforded an opportunity to 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). The Company acknowledges that the Release Date occurred on February 15, 2007. 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, (cont'd) 3 May 10, 2007 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 Second Amended NDA when used for a Permitted Purpose. Such Litigation Material shall not be subject to the Second 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, subject to the paragraph following this paragraph, 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. Notwithstanding the foregoing, nothing in this letter agreement shall prohibit Appaloosa or Harbinger from participating in a rights offering or transferring or exercising rights in connection therewith in accordance with applicable law. Notwithstanding anything in this - ---------- (cont'd from previous page) 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 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 May 10, 2007 agreement to the contrary, nothing in this letter agreement shall be deemed to restrict in any way any transfer, exchange or receipt of any securities or other instruments to or from the Company or in accordance with the consummation of any Plan of Reorganization or Transaction. In the event that certain Equity Purchase and Commitment Agreement dated as of January 18, 2007, as may be amended and supplemented from time to time (the "EPCA") is terminated, this paragraph shall automatically be modified to add the following sentence: "Notwithstanding anything in this letter agreement to the contrary, nothing in this letter agreement shall be deemed to restrict any transfer or delivery of any debt or equity securities of the Company in connection with a public tender offer for such securities." 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 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, at its sole cost, (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), at the Company's cost, 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 Second Amended NDA. Notwithstanding the return or destruction of Evaluation Material, you and your 5 May 10, 2007 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 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, other than in connection with a Transaction in which Appaloosa is a lead investor, 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 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) 6 May 10, 2007 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. Notwithstanding the foregoing, nothing in this Agreement shall prohibit Appaloosa or Harbinger from participating in a rights offering or transferring or exercising rights in connection therewith in accordance with applicable law. 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 Agreement in 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 (the "Information Deadline") 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 the Information Deadline. If, however, you believe that you are in possession of material non-public information 7 May 10, 2007 as of the Information Deadline, 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. Notwithstanding anything herein to the contrary, in the event (1) the Company agrees to modify the Information Deadline (or comparable term or provision) in a confidentiality agreement among the Company and any other person or entity, to a date that is earlier than the date a Plan of Reorganization is declared effective (an "Earlier Information Deadline"), the Company shall notify Appaloosa and Harbinger, in writing, and the Information Deadline set forth in this letter agreement shall at the request of Appaloosa or Harbinger be modified to be the date of the Earlier Information Deadline or (2) the EPCA is terminated, the Information Deadline set forth herein shall at the request of Appaloosa or Harbinger be modified to be the earlier of the (a) date a disclosure statement is approved by the Bankruptcy Court or (b) the Information Deadline (or comparable term or provision) set forth in any confidentiality agreement among the Company and any potential investor including, but not limited to, any party to the EPCA. 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. 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. 8 May 10, 2007 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 B. For Appaloosa Management L.P. Appaloosa Management L.P. 26 Main Street Chatham, New Jersey 07928 Attn: Mr. David A. Tepper Mr. Jim Bolin 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 9 May 10, 2007 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. 10 May 10, 2007 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/ Ken Maiman - ------------------------------ By: Its: HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. By: Harbinger Capital Partners Offshore Manager, LLC, as its investment manager /s/ Philip A. Falcone - ------------------------------ By: Its: 11 -----END PRIVACY-ENHANCED MESSAGE-----