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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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
[ ].
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Page 1 of 22
SCHEDULE 13D
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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
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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
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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
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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
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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.
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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
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