exv4w12



 





Exhibit 4.12




STOCKHOLDERS AGREEMENT




     This Stockholders Agreement (this “Agreement”) is entered into as of [_________],
2008, by and between Delphi Corporation, a Delaware corporation (as a debtor-in-possession and a
reorganized debtor, as applicable, the “Company”), and Appaloosa Management L.P. (the
“Stockholder”).



RECITALS




     A. This Agreement is being entered into in connection with the transactions contemplated by
the Equity Purchase and Commitment Agreement, dated as of August 3, 2007, as amended (and as the
same may be amended, modified or supplemented from time to time, the “EPCA”), by and among
the Stockholder, Harbinger, Merrill, UBS, GS, Pardus and the Company. All capitalized terms used
herein and not otherwise defined herein shall have the respective meanings set forth in the EPCA.



     B. In connection with the transactions contemplated by the EPCA, the Stockholder, among other
things, will purchase securities of the Company.



AGREEMENTS




     The Company and the Stockholder hereby agree as follows:



     1. Standstill. For a period of five (5) years from the Closing Date, the Stockholder
will not and shall cause its Affiliates not to (a) acquire, offer or propose to acquire, solicit an
offer to sell or donate or agree to acquire, or enter into any arrangement or undertaking to
acquire, directly or indirectly, by purchase, gift or otherwise, record or direct or indirect
Beneficial Ownership (as such term is defined in Rule 13d-3 of the Exchange Act) of shares of
common stock of the Company, par value $0.01 per share (the “Common Stock”) or any
securities convertible into or exchangeable for or direct or indirect rights, warrants or options
to acquire record or direct or indirect beneficial ownership of Common Stock (collectively, the
“Common Stock Equivalents”) representing an aggregate of more than 25% of the Company’s
then Outstanding Common Stock, or (b) sell, transfer, pledge, dispose, distribute or assign
(“Transfer”) to any Person in a single transaction, Common Stock or Common Stock
Equivalents representing more than 15% of the Company’s then Outstanding Common Stock;
provided, that the Stockholder shall be permitted to Transfer Common Stock or Common Stock
Equivalents (i) to any Affiliate of the Stockholder, (ii) as part of a broadly distributed public
offering effected in accordance with an effective registration statement, (iii) in the sale of the
Company to a Person or Persons other than, and not including, the Stockholder or any Affiliate of
the Stockholder pursuant to which such Person or Persons acquire (1) the capital stock of the
Company possessing the voting power under normal circumstances to elect a majority of the Company’s
Board of Directors (whether by merger, consolidation or sale or transfer of the Company’s capital
stock) or (2) all or substantially all of the Company’s assets determined on a consolidated basis,
(iv) pursuant to any tender or exchange offer, (v) as otherwise approved by (A) during the initial
three (3) year term of the Series A Directors (as defined in the Amended and Restated Certificate
of Incorporation of the Company, dated [____________], 2008), a



 









 




majority of directors on the Company’s Board of Directors who are not Series A Directors or (B)
after the initial three (3) year term of the Series A Directors, a majority of the directors on the
Company’s Board of Directors, (vi) any Transfer pursuant to the laws of succession, distribution
and descent; (vii) any Transfer by the Stockholder or any of its Affiliates to any employee,
officer, director or Affiliate, respectively, or any partner or, in each case, to the spouse,
children or grandchildren of any such employee, officer, director or partner or to a trust or
trusts solely for the benefit of such employee, officer, director or partner and/or their spouses,
children or grandchildren and (viii) any Transfer by the Stockholder or its Affiliates to any
Person upon any liquidation or any other distribution to the partners or any other holders of
beneficial interests in the Stockholder or such Affiliates. For the purpose of this Agreement,
“Outstanding Common Stock” means all shares of Common Stock issued and outstanding as of
the applicable time plus the number of shares issuable upon conversion or exercise of all
outstanding Common Stock Equivalents as of the applicable time; in each case either (i) as reported
in the Company’s most recent Form 10-K or Form 10-Q filed with the Commission or (ii) as specified
in a written notice delivered to the Stockholder by the Company in accordance with Section 3(a).




     Notwithstanding the foregoing, the Stockholder shall not be deemed to have breached Section
1(a) of this Agreement as the result of any corporate action by the Company (including any
acquisition of Common Stock or Common Stock Equivalents by the Company) which, by reducing the
Outstanding Common Stock increases the percentage of the Common Stock or Common Stock Equivalents
Beneficially Owned by the Stockholder (an “Excluded Event”); provided, that if the
Stockholder and its Affiliates shall become the Beneficial Owner of Common Stock or Common Stock
Equivalents representing in the aggregate more than 25% of the aggregate Outstanding Common Stock
by reason of an Excluded Event and shall, after receiving written notice of such circumstances from
the Company following such Excluded Event, become the Beneficial Owner of one or more additional
shares of Common Stock or Common Stock Equivalents (other than pursuant to another Excluded Event),
then the Stockholder shall be deemed to have breached Section 1(a) of this Agreement unless, upon
becoming the Beneficial Owner of such additional Common Stock or Common Stock Equivalents, the
Stockholder and its Affiliates are not then the Beneficial Owner of Common Stock or Common Stock
Equivalents representing in the aggregate more than 25% of the Outstanding Common Stock.
Additionally, the Stockholder shall not be deemed to have breached Section 1(a) of this Agreement
unless and until the Stockholder or its Affiliates shall not, within twenty (20) days of becoming
the Beneficial Owner of Common Stock or Common Stock Equivalents representing in the aggregate more
than 25% of the aggregate Outstanding Common Stock, have divested a sufficient number of shares of
Common Stock or Common Stock Equivalents so that the Stockholder and its Affiliates would no longer
Beneficially Own Common Stock or Common Stock Equivalents representing, in the aggregate, more than
25% of the Outstanding Common Stock; provided, that at any time during such twenty (20)-day
cure period that the Stockholder and its Affiliates are the Beneficial Owner of Common Stock or
Common Stock Equivalents representing in the aggregate more than 25% of the aggregate Outstanding
Common Stock, the Stockholder and its Affiliates shall not be entitled to exercise the voting
rights with respect to the acquired Common Stock and Common Stock Equivalents which caused them to
be the Beneficial Owner of Common Stock or Common Stock Equivalents representing in the aggregate
more than 25% of the aggregate Outstanding Common Stock.



 









 





     2. Stockholder Action



          (a) Action by Written Consent. At any time that the Stockholder is entitled to Series
A-1 Board Rights (as defined in the certificate of designations of 7.5% Series A-1 Senior
Convertible Preferred Stock, 7.5% Series A-2 Senior Convertible Preferred Stock and 3.25% Series B
Senior Convertible Preferred Stock of the Company), the Stockholder will not and shall cause its
Affiliates not to initiate any action by written consent in accordance with Section 6.1 of the
Amended and Restated Certificate of Incorporation of the Company, dated [_________], 2008 or
Section 2.12 of the Amended and Restated Bylaws of the Company, dated [_________], 2008;
provided, that nothing herein shall prohibit the Stockholder or any of its Affiliates from
voting or consenting to any matter or action that was not initiated by the Stockholder or such
Affiliate.




          (b) Special Meetings. At any time that the Stockholder is entitled to Series A-1
Board Rights (as defined in the certificate of designations of 7.5% Series A-1 Senior Convertible
Preferred Stock, 7.5% Series A-2 Senior Convertible Preferred Stock and 3.25% Series B Senior
Convertible Preferred Stock of the Company), the Stockholder will not and shall cause its
Affiliates not to request that the Company’s Board of Directors call a special meeting of the
stockholders of the Company; provided, that nothing herein shall prohibit the Stockholder
or its Affiliates from participating in or voting at any meeting of stockholders.




     3. Miscellaneous.



          (a) Notices. All notices and other communications in connection with this Agreement
will be in writing and will be deemed given (and will be deemed to have been duly given upon
receipt) if delivered personally, sent via e-mail, facsimile (with confirmation), mailed by
registered or certified mail (return receipt requested) or delivered by an express courier (with
confirmation) to the parties at the following addresses (or at such other address for a party
hereto as will be specified by like notice):



If to the Stockholder, to:


A-D Acquisition Holdings, LLC

c/o Appaloosa Management L.P.

26 Main Street,

Chatham, New Jersey 07928

Facsimile: (973) 701-7055

Email: j.bolin@amlp.com

Attention: James Bolin



with a copy (which shall not constitute notice) to:



White & Case LLP

Wachovia Financial Center

200 South Biscayne Boulevard

Suite 4900

Miami, Florida 33131-2352




 









 







Facsimile: (305) 358-5744/5766

Email: tlauria@whitecase.com

Attention: Thomas E. Lauria



and



White & Case LLP

1155 Avenue of the Americas

New York, New York 10036-2787

Facsimile: (212) 354-8113

Email: gpryor@whitecase.com

Attention: Gregory Pryor



If to the Company, to:



Delphi Corporation

5725 Delphi Drive

Troy, Michigan 48098

Facsimile: (248) 813-2612/(248) 813-2491/(248) 813-2491

Email: john.sheehan@delphi.com / david.sherbin@delphi.com/

sean.p.corcoran@delphi.com

Attention: John Sheehan/David Sherbin/Sean Corcoran



with a copy (which shall not constitute notice) to:



Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, New York 10036

Facsimile: (212) 735-2000

Email: ecochran@skadden.com/mgibson@skadden.com

Attention: Eric L. Cochran/Marie L. Gibson



and



Skadden, Arps, Slate, Meagher & Flom LLP

333 West Wacker Drive

Chicago, IL 60606

Facsimile: (312) 407-0411

Email: jbutler@skadden.com/gpanagak@skadden.com

Attention: John Wm. Butler, Jr./George Panagakis




          (b) Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement will be assigned by any of the parties hereto
(whether by operation of law or otherwise) without the prior written consent of the other party
hereto. This Agreement will be binding upon, inure to the benefit of and be enforceable by each of
the parties hereto and their respective successors and assigns. This Agreement (including the
documents and instruments referred to in this Agreement) is not intended to and




 









 







does not confer upon any person other than the parties hereto any rights or remedies under this
Agreement.




          (c) Governing Law; Venue. THIS AGREEMENT WILL BE GOVERNED AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY APPLICABLE CONFLICT OF LAWS
PRINCIPLES. EACH PARTY TO THIS AGREEMENT IRREVOCABLY SUBMITS TO THE JURISDICTION OF, AND VENUE IN,
THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR THE COURTS OF THE STATE OF NEW
YORK IN THE BOROUGH OF MANHATTAN AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS. EACH
PARTY HERETO HEREBY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY HERETO MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.




          (d) Counterparts. This Agreement may be executed in any number of counterparts, all of
which will be considered one and the same agreement and will become effective when counterparts
have been signed by each of the parties hereto and delivered to the other party hereto (including
via facsimile or other electronic transmission), it being understood that each party hereto need
not sign the same counterpart.




          (e) Entire Agreement. This Agreement (including the EPCA) constitutes the entire
agreement of the parties hereto in connection with the matters set forth in this Agreement, and
supersedes all prior agreements and understandings, whether written or oral, between the parties
hereto with respect to the matters set forth in this Agreement, except that the parties hereto
acknowledge that any non-disclosure agreements heretofore executed among the parties will continue
in full force and effect.




          (f) Waivers and Amendments. This Agreement may be amended, modified, superseded,
cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived, only
by a written instrument signed by the parties hereto or, in the case of a waiver, by the party
hereto waiving compliance. No delay on the part of any party hereto in exercising any right, power
or privilege pursuant to this Agreement will operate as a waiver thereof, nor will any waiver on
the part of any party hereto of any right, power or privilege pursuant to this Agreement, nor will
any single or partial exercise of any right, power or privilege pursuant to this Agreement,
preclude any other or further exercise thereof or the exercise of any other right, power or
privilege pursuant to this Agreement. The rights and remedies provided pursuant to this Agreement
are cumulative and are not exclusive of any rights or remedies which any party hereto otherwise may
have at law or in equity.




          (g) Headings. The headings in this Agreement are for reference purposes only and will
not in any way affect the meaning or interpretation of this Agreement.




 









 








          (h) Specific Performance. The parties hereto acknowledge and agree that any breach of
the terms of this Agreement would give rise to irreparable harm for which money damages would not
be an adequate remedy, and, accordingly, the parties hereto agree that, in addition to any other
remedies, each will be entitled to enforce the terms of this Agreement by a decree of specific
performance without the necessity of proving the inadequacy of money damages as a remedy and
without the necessity of posting bond.




          (i) Severability. If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity and enforceability
of the remaining provisions of this Agreement, unless the result thereof would be unreasonable in
which case the parties hereto shall negotiate in good faith as to appropriate amendments hereto.




          (j) Termination. This Agreement may be terminated at any time by a written instrument
signed by each party hereto.




[Signature Page Follows]





 









 








     IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first written
above.



	 	 	 	 	 
	 	DELPHI CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	APPALOOSA MANAGEMENT L.P.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Stockholders Agreement]