| Welcome to the Delphi
ERISA
Settlement website. This website
is designed to keep class members informed about the In
re Delphi ERISA Litigation Class
Action Settlement and other case developments.
DISTRIBUTION
INFORMATION
As of August 4, 2010, the Court-approved Plan of
Allocation is being
calculated in order to determine each Class Member’s pro rata
share of the Settlement. The settlement distribution is estimated to
occur in mid-September 2010. Class members are encouraged to check this
website periodically for updated distribution information.
If you qualify as a Settlement
Class member and are a current member of one
of the four Plans, then your Plan account will be automatically
credited with your Settlement award amount.
If you qualify as a Settlement Class member but do not
have a current
account in one of the Plans, then you will receive a check in the
mail.
Please note that under the Court-approved Plan of
Allocation, if your
share of the Settlement is calculated to be less than $10, you will
receive no payment.
Please DO NOT contact the Court or Delphi regarding the
Settlement. If
you have additional questions, please contact the Settlement
Administrator at (877) 296-9982.
SETTLEMENT UPDATE
On May 12, 2010,
the Court entered an Order
Granting Lead ERISA Counsel’s Motion for Award of
Attorneys’ Fees and Expenses.
On May 11, 2010,
the Honorable Gerald E. Rosen of the U.S. District Court for the
Eastern District of Michigan entered a Memorandum,
Opinion and Order Awarding State Street Bank Defense Costs.
UNITED
STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
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IN RE: DELPHI
CORPORATION SECURITIES, DERIVATIVE &
“ERISA” LITIGATION
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MDL No. 1725
Master Case No. 05-md-1725
Hon. Gerald E. Rosen
This Document
Relates to:
In re Delphi
Corp. ERISA Litigation,
Nos. 05-CV-70882,
05-70940, 05-71030,
05-71200, 05-71249,
05-71291, 05-71339,
05-71396, 05-71397,
05-71398, 05-71437,
05-71508, 05-71620,
05-71897, 05-72198
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NOTICE
OF PROPOSED MODIFICATION TO THE TERMS OF THE SETTLEMENT WITH CERTAIN
DEFENDANTS
This notice
provides important information concerning proposed modifications to the
settlement with certain defendants (the
“Settlement”) in the above-captioned action (the
“Delphi ERISA Action”) brought against Delphi
Corporation (“Delphi”) and other persons and
entities under the Employee Retirement Income Security Act
(“ERISA”) with respect to the Delphi Savings-Stock
Purchase Program for Salaried Employees (the “Salaried
Plan”), the Delphi Personal Savings Plan for Hourly-Rate
Employees (the “Hourly Plan”), the ASEC
Manufacturing Savings Plan (the “ASEC Plan”), and
the Delphi Mechatronic Systems Savings-Stock Purchase Program (the
“Mechatronic Plan”) (collectively, the
“Plans”). Your rights may be affected by the
settlement or the proposed modifications. You should read this notice
carefully.
TO:
The
“Class,” consisting of any person who was a
participant at any time between May 28, 1999 and November 1, 2005 in
the Delphi Savings-Stock Purchase Program for Salaried Employees (the
“Salaried Plan”), the Delphi Personal Savings Plan
for Hourly-Rate Employees (the “Hourly Plan”), or
the ASEC Manufacturing Savings Plan (the “ASEC
Plan”), or a participant at any time between June 1, 2001 and
November 1, 2005 in the Delphi Mechatronic Systems Savings-Stock
Purchase Program (the “Mechatronic Plan”)
(collectively, the “Plans”), whose account included
investments in the Delphi and/or GM Stock Funds; and, any beneficiary,
alternate payee, representative, or successor-in-interest of any such
person.
If the description
above applies to you, you may be part of the Class and may have a right
to know about the modifications to the Settlement of the Delphi ERISA
Action and about all of your options.
YOU ARE HEREBY NOTIFIED that Named Plaintiffs, on behalf of themselves
and the Class, and Delphi Corporation, ASEC Manufacturing General
Partnership (sued as “ASEC Manufacturing”), Delphi
Mechatronic Systems, Inc. (sued as “Delphi Mechatronic
Systems”), the Delphi Corporation Board of Directors
Executive Committee and its members, the Investment Policy Committee
and its members, and the Delphi Officer and Director Defendants, have
proposed a Modification to the terms of the Settlement in the
above-referenced Delphi ERISA Action (the
“Modification”) which has been presented to and
preliminarily approved by the Court. The Modification amends the
Settlement terms set forth in the Stipulation of Settlement With
Certain Defendants – ERISA Action, dated August 31, 2007 (the
“Stipulation”), as amended by the parties on
October 31, 2007 (the “Amended Stipulation”).
Unless stated otherwise, all capitalized terms herein are as defined in
the Amended Stipulation, as modified by the Modification.
A. PROCEDURAL
HISTORY OF THE SETTLEMENT
On August 31, 2007, the
parties executed the Stipulation, which provided for a final settlement
and resolution of the Settled Claims against the Released Parties. The
Stipulation was subsequently amended by the Amended Stipulation, dated
October 31, 2007, and on November 13, 2007, after notice was provided
to the Class, the Court conducted a fairness hearing concerning final
approval of the terms of the Settlement set forth in the Amended
Stipulation. On January 23, 2008, the Court entered an Order and Final
Judgment granting final approval to the Settlement and dismissing with
prejudice the Complaint against all defendants other than State Street
Bank and Trust Company.
In the interim, on September
6, 2007, Delphi filed in the Bankruptcy Court its Joint Plan of
Reorganization (“Plan”) which included the
Stipulation as an exhibit thereto. Consistent with the Stipulation, on
September 7, 2007, Delphi filed a motion in the Bankruptcy Court
seeking approval of the Settlement. On October 29, 2007, the Bankruptcy
Court preliminarily approved the Settlement and scheduled the matter
for final consideration to be heard in conjunction with
Delphi’s confirmation hearing concerning the Plan.
On January 25, 2008, the
Bankruptcy Court entered an order confirming the Plan (the
“Confirmation Order”) and approving the Settlement
as set forth in the Amended Stipulation.
B.
REASONS
FOR AND TERMS OF THE MODIFICATION
1. Reasons
for The Modification
Although approved by the
Bankruptcy Court and the Court, the Settlement could not by its terms
become effective until the Bankruptcy Effective Date, which would occur
upon substantial consummation of the Plan of Reorganization in
Delphi’s bankruptcy proceeding. Although Delphi has worked
with its stakeholders to complete its restructuring efforts, the Plan
of Reorganization originally approved by the Bankruptcy Court in the
Confirmation Order entered in January, 2008, will not be consummated,
and thus, the Settlement cannot become effective according to its
terms. As a result, the parties to the Amended Stipulation determined
that, based upon (i) the dramatic change in Delphi’s
circumstances since they entered into the Amended Stipulation,
including the catastrophic downturn in the economy, and in the auto
industry in particular, and (ii) the fact that the Bankruptcy Effective
Date will not occur with respect to the Plan that was the subject of
the Confirmation Order, it is in their best interests to enter into the
Modification, to,
inter alia, make the releases
granted in the Settlement effective, and to allow for distribution to
the Class of the cash held in escrow without regard to consummation of
Delphi’s Plan of Reorganization in the bankruptcy proceeding.
Without the Modification, the cash payments would remain in escrow
indefinitely and the Effective Date as originally contemplated would
never occur. In sum, this Modification will allow Class Members to
finally receive distribution of settlement funds that they are entitled
to receive.
2. Terms
of the Modification
On July 10, 2009, the parties
to the Amended Stipulation entered into the Modification, which amended
the Settlement as follows:
The Equity Interest granted to
the Class pursuant to the Amended Stipulation will remain allowed in
the same aggregate face amount as provided for in the Amended
Stipulation, but will not be guaranteed any particular treatment or
classification, and instead will be a claim to be classified under the
Delphi Plan of Reorganization subject to further modifications and/or
rulings of the Bankruptcy Court except as to the aggregate face amount
thereof. Under the terms of Delphi’s new Plan of
Reorganization confirmed by the Bankruptcy Court in July, 2009, the
Equity Interest has no value.
The Modification further
provides that the Settlement will become effective upon the entry of an
order by each of the Bankruptcy Court and the Court approving the
Modification (and the corresponding modification to the settlement of
the Delphi Securities Action), and such orders becoming Final,
independent of the occurrence of the Bankruptcy Effective Date and/or
substantial consummation of Delphi’s Plan of Reorganization.
The Bankruptcy Court approved
the Modification in July, 2009, and that approval is now Final.
Accordingly, the Settlement, as modified by the Modification, will
become effective, if the Court approves the Modification and that
approval becomes Final. Upon the Settlement becoming effective, Class
Members will be able to receive the distribution of settlement funds
which they are entitled to receive under the terms of the Settlement as
modified.
C.
CLASS
MEMBERS’ RIGHTS AND OBLIGATIONS
A hearing will be held before
the Honorable Gerald E. Rosen in the United States District Court for
the Eastern District of Michigan, Southern Division, Theodore Levin
Courthouse, 231 W. Lafayette Blvd., Detroit, Michigan 48226 in
Courtroom 733, at 1:00 p.m.,
on Monday, November 16, 2009
(the “Fairness Hearing”) to: (1) determine whether
the Modification should be approved by the Court as fair, reasonable
and adequate; (2) determine whether Judgment should be entered pursuant
to the Modification; and (3) rule upon Lead Counsel’s Motion
for an Award of Attorneys’ Fees and Expenses, and upon such
other matters as the Court deems appropriate.
If you are a Class Member, you
may object to any aspect of the proposed Modification. To object, you
must send a letter stating that you are a Class Member, that you object
to the Modification in In re
Delphi Securities, Derivative and ERISA Litigation,
MDL No. 1725, Case No. 05-md-1725, and the reasons why you object. In
your objection, you must include your name, address, telephone number,
and your signature. If you intend to present any witnesses at the
Fairness Hearing, you must also so state. Your objection must be filed
with the Court at the address below by November 2, 2009, and received
no later than November 2, 2009, by counsel listed below:
Clerk of the Court:
David J. Weaver,
Clerk of Court
United States District Court, Eastern District of Michigan
231 West Lafayette Blvd., Fifth Floor
Detroit, MI 48226
Lead
Counsel and certain Settling Defendants’ Counsel:
Lynn L.
Sarko, Esq.
Gary A. Gotto, Esq.
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Ste 3200
Seattle, WA 98101-3052
Plaintiffs’
Lead Counsel
|
Stuart J.
Baskin, Esq.
Brian H. Polovoy, Esq.
SHEARMAN & STERLING, LLP
599 Lexington Avenue
New York, New York 10022
Counsel
to Settling Defendants
Delphi Corporation, ASEC Manufacturing General Partnership (sued as
“ASEC Manufacturing”), Delphi Mechatronic Systems,
Inc. (sued as “Delphi Mechatronic Systems”), the
Investment Policy Committee, Robert H. Brust, Susan A. McLaughlin, and
John D. Opie |
D.
ATTORNEYS’
FEES AND EXPENSES
In its January 23, 2008 Order
and Final Judgment approving the Settlement, the Court established a
reserve of 20% of the Gross Settlement Fund for a potential award of
attorneys’ fees and a reserve of $750,000 for costs and
expenses, to be distributed upon further order of the Court and Lead
Counsel’s application for award of attorneys’ fees
and expense to be filed upon conclusion of the Delphi ERISA Action as
to all parties. Lead Counsel filed a Motion for an award of the amounts
so reserved on September 16, 2009. It is anticipated that the Court
will consider that Motion at the Fairness Hearing.
GETTING
MORE INFORMATION
This notice
summarizes the proposed terms of the Modification. More details are
contained in Modification itself, which is available at www.KellerSettlements.com,
along with the Amended Stipulation and the original notice mailed to
the Class which provide additional information concerning the
Settlement. If you have questions regarding how to obtain copies of
documents related to the Settlement, you may contact Lead Counsel at
the address listed above or call toll free at (877) 296-9982.
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