UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 14A

Proxy Statement Pursuant to Section 14(a) of the

Securities Exchange Act of 1934

 

 

Filed by the Registrant  ☒                            Filed by a Party other than the Registrant  ☐

Check the appropriate box:

 

☐		Preliminary Proxy Statement
☐		Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
☒		Definitive Proxy Statement
☐		Definitive Additional Materials
☐		Soliciting Material under §240.14a-12

DELPHI TECHNOLOGIES PLC

(Name of Registrant as Specified In Its Charter)

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check the appropriate box):

☐		No fee required.
☐		Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
		(1)		Title of each class of securities to which transaction applies:
		(2)		Aggregate number of securities to which transaction applies:
		(3)		Per unit price of other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
		(4)		Proposed maximum aggregate value of transaction:
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☐		Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
		(1)		Amount Previously Paid:
		(2)		Form, Schedule or Registration Statement No.:
		(3)		Filing Party:
		(4)		Date Filed:

 

 

 

DELPHI TECHNOLOGIES PLC

One Angel Court, 10th Floor,

London, EC2R 7HJ, United Kingdom

TRANSACTION PROPOSED—YOUR VOTE IS VERY IMPORTANT

To our Shareholders:

You are cordially invited to attend two special meetings of the shareholders of Delphi Technologies PLC (“Delphi Technologies” or the “Company”), which will be held exclusively online via live webcast. The first, the special court-ordered meeting (the “Court Meeting”), is to be held on June 25, 2020 at 9:00 a.m. (Eastern time), and the second, the extraordinary general meeting of shareholders (the “extraordinary general meeting”), is to be held on June 25, 2020 at 9:15 a.m. (Eastern time), or, if the Court Meeting has not concluded by 9:15 a.m. (Eastern time), as soon as possible after the conclusion of the Court Meeting.

As part of our precautions regarding the COVID-19 pandemic, we are sensitive to the public health and travel concerns that our shareholders may have, as well as any quarantines or other protocols that governments may impose. As a result, the Court Meeting and the extraordinary general meeting will be held in a virtual meeting format only, via live webcast. There will not be a physical meeting location. The special meetings can be attended by visiting www.meetingcenter.io/243532838 and following the instructions on the website, where you will be able to participate in the special meetings live and vote online. For specific details regarding the two meetings, including how to attend the special meetings online via live webcast, the full text of each resolution to be voted on, who is entitled to vote, what you will be asked to vote on and how you can either (i) appoint a proxy if you are a registered shareholder or (ii) instruct your broker, bank, trust or other nominee how to vote if you are a beneficial holder, see the following notices relating to the two special meetings and the accompanying proxy statement.

As previously announced, on January 28, 2020, Delphi Technologies entered into the Transaction Agreement with BorgWarner Inc., a Delaware corporation (“BorgWarner”), which was subsequently amended on May 6, 2020 (as amended, the “transaction agreement”). Under the terms of the transaction agreement, BorgWarner or a subsidiary of BorgWarner will acquire Delphi Technologies (the “acquisition” or the “transaction”) pursuant to a scheme of arrangement (the “scheme”) under Part 18A of the Companies (Jersey) Law 1991(the “Companies Law”). As a result of the scheme, Delphi Technologies will become a wholly owned subsidiary of BorgWarner.

As consideration for the acquisition, Company shareholders will be entitled to receive at the effective time of the scheme (the “effective time”) 0.4307 (the “exchange ratio”) of a share of BorgWarner common stock, par value $0.01 per share (each, a “BorgWarner share”), subject to any required withholding of taxes, in exchange for each Company ordinary share, $0.01 par value per share (each, a “Company share”) held by such Company shareholders, and cash in lieu of any fractional share interest of a BorgWarner share.

Company equity awards will be treated as set forth in the transaction agreement, such that (i) each Company restricted share unit award (other than performance-based restricted share units) that is outstanding as of immediately prior to the effective time (each, an “Existing RSU Award”) other than Existing RSU Awards held by certain individuals including certain of our named executive officers (each, a “Scheduled RSU”) and by non-employee members of the Company board of directors (each, an “Existing DU Award”), will automatically be converted on the same terms and conditions (including applicable vesting conditions) into an award of restricted share units of BorgWarner covering a number of BorgWarner shares equal to the number of Company

shares subject to the Existing RSU Award multiplied by the exchange ratio; (ii) each performance-based restricted share unit outstanding immediately prior to the effective time (each, an “Existing PSU Award”) other than Existing PSU Awards held by certain individuals including certain of our named executive officers (each, a “Scheduled PSU”), will automatically be converted on the same terms and conditions (other than performance-based vesting conditions) into an award of time-vesting restricted share units of BorgWarner covering a number of BorgWarner shares equal to the number of Company shares subject to the Existing PSU Award (determined assuming all performance vesting conditions are achieved at the greater of target and actual performance measured through the effective time) multiplied by the exchange ratio; (iii) each Scheduled RSU, Scheduled PSU and Existing DU Award will be cancelled and converted into the right to receive, for each Company share subject to the Scheduled RSU, Scheduled PSU (determined assuming all performance vesting conditions are achieved at the greater of target and actual performance measured through the effective time) or Existing DU Award, a cash amount equal to (x) the volume-weighted average price of a BorgWarner share for the period of the 10 consecutive trading days ending on the second full trading day prior to the effective time, multiplied by (y) the exchange ratio (the “Cash Value”) and (iv) each stock option to purchase Company shares, whether vested or unvested, outstanding as of immediately prior to the effective time (each, an “Existing Option”) will automatically be cancelled and converted into the right to receive a cash amount equal to the product of (a) the excess, if any, of the Cash Value over the exercise price per Company share of such Existing Option multiplied by (b) the total number of Company shares subject to such Existing Option. Notwithstanding the foregoing, any payments relating to an Existing RSU Award, Existing PSU Award or Existing DU Award will be delayed to the extent required by Section 409A of the Code.

Beneficial Owners

Shareholders who beneficially own Company shares for which Cede & Co. is the registered holder (as nominee for The Depository Trust Company) and whose interests in Company shares are held in “street name” by a broker, bank, trust or other nominee are referred to as “beneficial owners” or “beneficial holders.” If you are a beneficial owner, only your broker, bank, trust or other nominee can vote your Company shares and the vote cannot be cast unless you provide instructions to your broker, bank, trust or other nominee or obtain a legal proxy from your broker, bank, trust or other nominee. You should follow the directions provided by your broker, bank, trust or other nominee regarding how to instruct such person to vote your Company shares. Because the accompanying proxy statement relates to two separate special meetings, beneficial holders will receive voting instructions applicable to each special meeting from their broker, bank, trust or other nominee. Beneficial holders should follow the directions provided by their broker, bank, trust or other nominee regarding how to instruct such broker, bank, trust or nominee to vote their beneficially held shares. Please note that beneficial holders of shares held through a broker, bank, trust or other nominee may be required to submit voting instructions to their applicable broker, bank, trust or nominee at or prior to the deadline applicable for such submission and such holders should, therefore, follow the separate instructions that will be provided by such broker, bank, trust or other nominee.

Shareholders of Record

Shareholders whose names appear in the register of shareholders of Delphi Technologies are referred to as “shareholders of record.” Shareholders of record entitled to vote at each of the special meetings may attend the applicable meeting via live webcast and vote online during the meeting or they may appoint another person or persons, whether a shareholder of Delphi Technologies or not, as their proxy or proxies, to exercise all or any of their rights to attend, speak and vote at the Court Meeting and the extraordinary general meeting, as applicable. Shareholders of record are receiving two mailings, one mailing that includes a form of proxy with instructions for voting at the Court Meeting and a second mailing that includes a form of proxy with instructions for voting at the extraordinary general meeting. To be valid, each form of proxy should be completed and returned in accordance with the instructions set out on the forms.

You are being asked to consider and vote on a proposal to approve the scheme at the Court Meeting. You are also being asked to consider and vote at the extraordinary general meeting on two additional proposals: (i) a related proposal necessary to implement the scheme and (ii) a non-binding advisory proposal to approve certain

compensation arrangements for the Company’s named executive officers. The scheme will be subject to the subsequent sanction by the Royal Court of Jersey (the “Court”). More information about the transaction and the proposals is contained in the accompanying proxy statement. We urge all Company shareholders to read the accompanying proxy statement, including the annexes and the documents incorporated by reference therein, carefully and in their entirety. In particular, we urge you to read carefully “Risk Factors” beginning on page 26 of the accompanying proxy statement.

After careful consideration, the Company board of directors (the “Board”) has (i) approved and declared advisable the transaction agreement, the transactions contemplated by the transaction agreement and the scheme (including the execution, delivery and performance of the transaction agreement and the consummation of such transactions and the scheme) and (ii) declared that it is in the best interests of Company shareholders that Delphi Technologies enter into the transaction agreement and consummate such transactions and the scheme. The Board recommends that you vote “FOR” the approval of all proposals presented in the proxy statement. In considering the recommendation of the Board, you should be aware that certain directors and executive officers of Delphi Technologies have interests in the proposed transaction that are in addition to, or different from, any interests they might have as shareholders. See “The Transaction—Interests of Certain Persons in the Transaction” beginning on page 87 of the accompanying proxy statement for more information. Your vote is very important. Please vote as soon as possible, whether or not you plan to attend the special meetings via live webcast, by following the instructions in the accompanying proxy statement.

Subject to the approvals of the scheme proposal at the Court Meeting and the proposal to amend the Company’s articles of association at the extraordinary general meeting and the satisfaction of the other conditions to the completion of the transaction, it is anticipated that the Court hearing of the application to sanction said scheme of arrangement (the “Court Hearing”) will take place in the second half of 2020.

Company shareholders are entitled to attend and be heard at the Court Hearing, either in person or by live video link or through a Jersey advocate, to support or oppose the Scheme. The Company will disclose the date of the Court Hearing by public announcement and SEC filing after it has been scheduled and not less than 14 days before the Court Hearing.

On behalf of the Board, thank you for your consideration and continued support.

Very truly yours,

 

Richard F. Dauch

Chief Executive Officer

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the transaction or the securities to be issued in connection with the transaction or determined if the accompanying proxy statement is accurate or complete. Any representation to the contrary is a criminal offense.

The accompanying proxy statement is dated May 26, 2020, and is first being mailed to Company shareholders on or about May 26, 2020.

ADDITIONAL INFORMATION

The accompanying proxy statement incorporates by reference important business and financial information about Delphi Technologies from documents that are not included in or delivered with the proxy statement. This information is available to you without charge upon your written or oral request. The documents incorporated by reference will not be provided to you unless they are requested by you. You can obtain the documents incorporated by reference in the proxy statement by requesting them in writing, by telephone or by visiting the investor relations website as follows:

Delphi Technologies PLC

3000 University Drive

Auburn Hills, Michigan 48326

Attention: Assistant Corporate Secretary

Investor Relations Website: ir.delphi.com

Phone: 011-44-020-305-74300

In addition, if you have questions about the transaction or the special meetings, or if you need to obtain copies of the accompanying proxy statement, forms of proxy or other documents incorporated by reference in the proxy statement, you may contact the contact listed below. You will not be charged for any of the documents you request.

Innisfree M&A Incorporated

501 Madison Avenue, 20th Floor

New York, NY 10022

Shareholders Call Toll-free: (877) 456-3463

Banks and Brokers Call: (212) 750-5833

If you would like to request documents, please do so by 5:00 p.m. (Eastern time) on June 18, 2020 in order to ensure timely delivery of the documents before the special meetings.

For a more detailed description of the information incorporated by reference in the accompanying proxy statement and how you may obtain it, see “Where You Can Find More Information” beginning on page 184 of the accompanying proxy statement.

DELPHI TECHNOLOGIES PLC

One Angel Court, 10th Floor,

London, EC2R 7HJ, United Kingdom

NOTICE OF COURT MEETING

 

IN THE ROYAL COURT OF JERSEY
SAMEDI DIVISION		File No. 2020/060
May 26, 2020

IN THE MATTER OF DELPHI TECHNOLOGIES PLC

– and –

IN THE MATTER OF ARTICLE 125 OF THE COMPANIES (JERSEY) LAW 1991

NOTICE IS HEREBY GIVEN that, by an Act of the Court dated May 20, 2020 made in the above matters, the Royal Court of Jersey (the “Court”) has ordered a meeting (the “Court Meeting”) to be convened of the holders of the Scheme Shares (as defined in the proposed scheme of arrangement that is included in the accompanying proxy statement) of Delphi Technologies PLC (“Delphi Technologies” or the “Company”) for the purpose of considering and, if thought fit, approving the following resolution to approve a scheme of arrangement (the “scheme” or “scheme of arrangement”) proposed to be made pursuant to Part 18A of the Companies (Jersey) Law 1991, as amended (the “Companies Law”) between Delphi Technologies and the holders of the Scheme Shares, and that the Court Meeting will be held via live webcast on June 25, 2020 at 9:00 a.m. (Eastern time) (unless adjourned or postponed):

“That the scheme in its original form or with or subject to any modification(s), addition(s) or condition(s) approved or imposed by the Royal Court of Jersey be agreed to.”

A copy of the scheme of arrangement and a copy of the explanatory statement required to be published pursuant to Article 126 of the Companies Law are included in the proxy statement of which this Notice forms a part. By the said Act of the Court, the Court has appointed Richard Dauch or, failing him, any other director of Delphi Technologies, to act as Chairman of the Court Meeting and has directed the Chairman to report the result thereof to the Court.

Subject to the approval of the resolution proposed at the Court Meeting convened by this Notice, the resolutions to be proposed at the extraordinary general meeting of Delphi Technologies convened for June 25, 2020 and the satisfaction of the other conditions to the completion of the scheme of arrangement, it is anticipated that the Court hearing of the application to sanction said scheme of arrangement will take place in the second half of 2020. Terms not otherwise defined herein shall have the same meaning in this Notice as they have in the proxy statement. The proxy statement contains further instructions in relation to the scheme and the Court Meeting and should be read in its entirety.

Said scheme of arrangement will be subject to the subsequent sanction of the Court.

Shareholders of Record and Beneficial Holders

Shareholders whose names appear in the register of shareholders of Delphi Technologies are referred to as “shareholders of record.” Shareholders of record as of the Voting Record Time (as defined below) are entitled to attend the Court Meeting via live webcast and vote online during the meeting or they may appoint another person or persons, whether a shareholder of Delphi Technologies or not, as their proxy or proxies, to exercise all or any of their rights to attend, speak and vote at the Court Meeting. There will not be a physical meeting location.

Shareholders of record who elect to attend and vote online during the Court Meeting may do so by visiting www.meetingcenter.io/243532838 and following the instructions on the website. Shareholders of record do not need to register to attend the Court Meeting via live webcast. Shareholders of record will need the 15-digit control number located in the shaded bar on the form of proxy to vote and ask questions at the Court Meeting. The password for the Court Meeting is DLPH2020. Shareholders of record should follow the instructions above and on the form of proxy to allow ample time for the check-in procedures. Shareholders of record must bear any costs associated with internet access, such as usage charges from internet access providers and telephone or similar companies.

Shareholders who beneficially own ordinary shares of Delphi Technologies, $0.01 par value per share (“Company shares”) for which Cede & Co. is the registered holder (as nominee for The Depository Trust Company) and whose interests in Company shares are held in “street name” by a broker, bank, trust or other nominee are referred to as “beneficial holders.” Beneficial holders as of the Beneficial Holder Record Time (as defined below) will be entitled to direct their brokers, banks, trusts or other nominees how to vote such beneficially held shares at the Court Meeting. Only a broker, bank, trust or other nominee of a beneficial holder can vote such beneficially held shares and the vote cannot be cast unless such beneficial holder provides instructions to such broker, bank, trust or other nominee, or obtains a legal proxy from such broker, bank, trust or other nominee, which entitles such beneficial holder to vote such shares as a proxy for the shareholder of record. To register to attend the Court Meeting via live webcast and vote during the meeting, beneficial holders must submit such request, along with proof of the legal proxy and the beneficial holder’s name and email address, to our transfer agent, Computershare Trust Company, N.A. Requests for registration should be directed to: Computershare, attention: Delphi Technologies Legal Proxy, P.O. Box 43001, Providence, RI 02940-3001. Beneficial holders may also forward an email from their broker, bank, trust or other nominee of their legal proxy, or attach an image of their legal proxy, to legalproxy@computershare.com. Requests for registration must be received no later than 5:00 p.m. (Eastern time) on June 18, 2020 in order to ensure timely registration.

All shareholders of record and beneficial holders as of the close of business (Eastern time) on May 1, 2020 will receive this Notice.

Right to Appoint a Proxy; Procedure for Appointment

A form of proxy for use at the Court Meeting is being mailed to shareholders of record. To be valid, a form of proxy should be completed and returned in accordance with the instructions set out on the form. A form of proxy duly completed and signed, together with any power of attorney, if any, under which it is signed, should be returned in accordance with the instructions set out in the form as promptly as possible and no later than noon (Eastern time) on June 23, 2020.

Completion and return of a form of proxy will not preclude a shareholder of record as of the Voting Record Time from attending the Court Meeting, or any adjournment or postponement thereof, via live webcast and voting online during the meeting if that shareholder wishes to do so.

Beneficial holders will receive voting instructions from their broker, bank, trust or other nominee for the Court Meeting. Beneficial holders should follow the directions provided by their broker, bank, trust or other nominee regarding how to instruct such broker, bank, trust or nominee to vote their beneficially held shares. Please note that beneficial holders of shares through a broker, bank, trust or other nominee may be required to submit voting instructions to their applicable broker, bank, trust or nominee at or prior to the deadline applicable for such submission and such holders should, therefore, follow the separate instructions that will be provided by such broker, bank, trust or other nominee.

If the form of proxy is properly executed and returned, it will be voted in the manner directed by the shareholder executing it, or if no directions are given, it will be voted at the discretion of the individuals referred to on the form of proxy or any other person duly appointed as proxy by the shareholder.

In the case of a corporation, the form of proxy must be signed by a duly authorized officer, giving full title as such.

Voting Record Time

Shareholders of record entitled to attend and vote at the Court Meeting, or any adjournment or postponement thereof, and the number of votes which may be cast, will be determined by reference to the register of shareholders of Delphi Technologies as of 6:00 p.m. (Jersey time) on June 18, 2020 or at 6:00 p.m. (Jersey time) on the date which is five business days prior to any adjournment or postponement of the Court Meeting (as the case may be) (the “Voting Record Time”).

Beneficial Holder Record Time

Only beneficial holders as of the close of business (Eastern time) on May 1, 2020 (the “Beneficial Holder Record Time”) will be entitled to direct their brokers, banks, trusts or other nominees how to vote such beneficially held shares at the Court Meeting.

Joint Holders

In the case of joint holders of Company shares that are shareholders of record, the vote of the senior holder who tenders a vote (in person via live webcast or by proxy) will be accepted to the exclusion of the vote(s) of the other joint holder(s). For this purpose, seniority will be determined by the order in which the names of the holders stand in the register of shareholders of Delphi Technologies in respect of such joint holding.

Issued Shares and Total Voting Rights

As of May 21, 2020, the total number of issued and outstanding Company shares entitled to vote at the Court Meeting is 86,349,731. The proposal to approve the scheme at the Court Meeting shall be decided on a poll. Every holder of a Company share that is entitled to vote (in person via live webcast or by proxy) will have one vote for every Company share carrying voting rights of which he, she or it is the holder. The scheme proposal must be approved by (a) a majority in number of shareholders of record as of the Voting Record Time that are present and voting (in person via live webcast or by proxy) at the Court Meeting and (b) at least 75% of the votes cast by the Company shareholders present and voting (in person via live webcast or by proxy).

YOUR VOTE IS IMPORTANT

SHAREHOLDERS OF RECORD ARE RECEIVING TWO MAILINGS, ONE MAILING THAT INCLUDES A FORM OF PROXY WITH INSTRUCTIONS FOR VOTING AT THE COURT MEETING AND A SECOND MAILING THAT INCLUDES A FORM OF PROXY WITH INSTRUCTIONS FOR VOTING AT THE EXTRAORDINARY GENERAL MEETING. YOU ARE ENCOURAGED TO VOTE AT EACH MEETING. IT IS IMPORTANT THAT AS MANY VOTES AS POSSIBLE ARE CAST AT THE COURT MEETING (IN PERSON VIA LIVE WEBCAST OR BY PROXY) SO THAT THE COURT CAN BE SATISFIED THAT THERE IS A FAIR AND REASONABLE REPRESENTATION OF COMPANY SHAREHOLDER OPINION. TO ENSURE YOUR REPRESENTATION AT THE COURT MEETING, YOU ARE REQUESTED TO COMPLETE, SIGN AND DATE THE FORM OF PROXY FOR THE COURT MEETING AS PROMPTLY AS POSSIBLE AND RETURN IT IN THE POSTAGE PREPAID ENVELOPE ENCLOSED FOR THAT PURPOSE OR VOTE BY TELEPHONE OR OVER THE INTERNET FOLLOWING THE INSTRUCTIONS PROVIDED IN THE FORM OF PROXY. IF YOU ARE A SHAREHOLDER OF RECORD AND ATTEND THE COURT MEETING VIA LIVE WEBCAST, YOU MAY VOTE ONLINE DURING THE MEETING EVEN IF YOU HAVE RETURNED A COMPLETED FORM OF PROXY. BENEFICIAL HOLDERS WILL RECEIVE VOTING INSTRUCTIONS APPLICABLE TO EACH SPECIAL MEETING FROM THEIR BROKER, BANK, TRUST OR OTHER NOMINEE. BENEFICIAL HOLDERS SHOULD FOLLOW THE DIRECTIONS PROVIDED BY THEIR BROKER, BANK, TRUST OR OTHER NOMINEE REGARDING HOW TO INSTRUCT SUCH BROKER, BANK, TRUST OR NOMINEE TO VOTE THEIR BENEFICIALLY HELD SHARES.

Dated May 26, 2020

Carey Olsen Jersey LLP

47 Esplanade,

St Helier, Jersey, JE1 0BD

Solicitors for Delphi Technologies

DELPHI TECHNOLOGIES PLC

One Angel Court, 10th Floor,

London, EC2R 7HJ, United Kingdom

NOTICE OF EXTRAORDINARY GENERAL MEETING OF DELPHI TECHNOLOGIES PLC

NOTICE IS HEREBY GIVEN that an EXTRAORDINARY GENERAL MEETING (the “extraordinary general meeting”) of Delphi Technologies PLC (“Delphi Technologies” or the “Company”) will be held via live webcast on June 25, 2020 at 9:15 a.m. (Eastern time) or, if the Court Meeting (as defined in the scheme of arrangement that is included in the accompanying proxy statement of which this Notice forms a part (the “scheme”)) has not concluded by 9:15 a.m. (Eastern time), as soon as possible after the conclusion of the Court Meeting for the purpose of laying the Company’s 2019 audited financial statements before the extraordinary general meeting and for the purpose of considering and, if thought fit, passing the following resolutions. There will not be a physical meeting location. The special meetings can be attended by visiting www.meetingcenter.io/243532838 and following the instructions on the website.

SPECIAL RESOLUTION

1. THAT for the purpose of giving effect to the scheme, in its original form or subject to such modification, addition or condition approved or imposed by the Royal Court of Jersey (the “Court”) and agreed by Delphi Technologies and BorgWarner Inc. (“BorgWarner”):

the directors of Delphi Technologies (or a duly authorized committee thereof) be authorized to take all such action as they may consider necessary or appropriate for carrying the scheme into full effect and with effect from the passing of this resolution, the Articles of Association of Delphi Technologies be and are hereby amended by the adoption and inclusion of the following new Article 41:

41 SCHEME OF ARRANGEMENT

41.1 In this Article 41:

(a) BorgWarner means BorgWarner Inc., a Delaware corporation; and

(b) the Scheme means the scheme of arrangement dated 26 May 2020 between the Company and the Scheme Shareholders (as defined in the Scheme) under Article 125 of the Companies Law in its original form or with or subject to any modification, addition or condition approved or imposed by the Royal Court of Jersey and agreed by the Company and BorgWarner and (save as defined in this Article) expressions defined in the Scheme shall have the same meanings in this Article.

41.2 Notwithstanding any other provision of these Articles or the terms of any resolution passed by the Company in the extraordinary general meeting, if the Company issues any shares (other than to BorgWarner or its nominee) on or after the Voting Record Time and at or prior to the Scheme Record Time, such shares shall be issued subject to the terms of the Scheme (and shall be Scheme Shares for purposes thereof) and the original or any subsequent holder or holders of such shares shall be bound by the Scheme accordingly.

41.3 Subject to the Scheme becoming effective, and notwithstanding any other provision of these Articles, if any shares are issued to any person (other than BorgWarner or its nominee) (the “New Member”) after the Scheme Record Time (the “Post-Scheme Shares”), such New Member shall be obliged to transfer forthwith the Post-Scheme Shares, free from encumbrances, held by the New Member (or any subsequent holder of any nominee of

such New Member or any such subsequent holder), to BorgWarner (or as BorgWarner may direct) in consideration of and conditional on the issue, subject to any required withholding of taxes, of 0.4307 shares of BorgWarner common stock of par value $0.01 (each, a “BorgWarner share”) (and any payment of cash in lieu of fractional share entitlements) to the New Member for every one (1) Post-Scheme Share.

41.4 On any reorganization of, or material alteration to, the share capital of the Company (including, without limitation, any subdivision and/or consolidation), the value of the consideration per Post-Scheme Share to be provided under Article 41.3 above shall be adjusted by the directors of the Company, without duplication, to proportionally reflect such change, following such adjustment, be construed accordingly.

41.5 To give effect to any transfer required by this Article, the Company may appoint (and each New Member hereby accepts the appointment of) any person as the Company may determine as attorney under the Powers of Attorney (Jersey) Law 1995 and any such appointment shall be irrevocable for a period of one year from the date upon which such New Member is issued the relevant Post-Scheme Shares for that New Member) and/or agent for the New Member to execute and deliver as transferor a form of transfer or instructions of transfer on behalf of the New Member (or any subsequent holder or any nominee of such New Member or any such subsequent holder) in favor of BorgWarner or its nominee and do all such other things and execute and deliver all such documents as may in the opinion of the Attorney be necessary or desirable to vest the Post-Scheme Shares in BorgWarner or its nominee and pending such vesting to exercise all such rights to the Post-Scheme Shares as BorgWarner may direct. If an Attorney is so appointed, the New Member shall not thereafter be entitled to exercise any rights attaching to the Post-Scheme Shares unless so agreed by BorgWarner. The Company may give good receipt for the consideration for the Post-Scheme Shares and may register BorgWarner or its nominee as holder thereof and issue to it certificate(s) for the same. The Company shall not be obliged to issue a certificate to the New Member for any Post-Scheme Shares.

41.6 No fractional shares of BorgWarner shares shall be issued to the New Member and no certificates for any such fractional shares shall be issued. All fractional shares to which a New Member would be entitled shall be aggregated, and calculations shall be rounded to three decimal places. In lieu of any such fractional shares, each New Member who would otherwise be entitled to such fractional shares shall be entitled to an amount in cash, without interest and subject to any required withholding of taxes, rounded down to the nearest cent, equal to the product of (i) the amount of the fractional share interest in a BorgWarner share to which such holder would otherwise have been entitled but for this Article 41.6 and (ii) an amount equal to the Closing Volume-Weighted Average Price.

41.7 If the Scheme shall not have become effective by the date referred to in clause 6(b) of the Scheme (or such later date, if any, as BorgWarner and the Company may agree and the Jersey Court may allow), this Article 41 shall be of no effect.

41.8 Notwithstanding any other provision of these Articles, the Directors may refuse to register the transfer of any Scheme Shares effected between the Scheme Record Time and the Effective Date other than to BorgWarner and/or its nominees pursuant to the Scheme or this Article.

41.9 Notwithstanding any other provision of these Articles, the Directors may refuse to register the transfer of any shares other than pursuant to the Scheme or as provided by this Article, but neither the Company nor the directors of the Company may refuse to register the transfer of any shares pursuant to the Scheme or as provided by this Article.

ORDINARY RESOLUTION (NON-BINDING)

2. THAT the golden parachute compensation, as disclosed pursuant to Item 402(t) of Regulation S-K in the Golden Parachute Compensation Table and the footnotes to that table contained in the section captioned “The Transaction—Interests of Certain Persons in the Transaction” beginning on page 87 of the proxy statement, be approved.

Holders of shares in Delphi Technologies entitled to vote at the extraordinary general meeting may attend the extraordinary general meeting via live webcast and vote online during the meeting or they may appoint another person or persons, whether a shareholder of Delphi Technologies or not, as their proxy or proxies, to exercise all or any of their rights to attend, speak and vote at the extraordinary general meeting. Further instructions as to how to attend and vote at the meeting and appoint proxies and further information on the proposals, voting and quorum requirements are set out in the accompanying proxy statement of which this notice forms a part.

 

By order of the Board of Directors Senior Vice President, General Counsel, Secretary and Chief Compliance Officer		Delphi Technologies PLC One Angel Court, 10th Floor, London, EC2R 7HJ, United Kingdom

James D. Harrington

Dated: May 26, 2020

TABLE OF CONTENTS

 

		Page
QUESTIONS AND ANSWERS ABOUT THE TRANSACTION AND THE SPECIAL MEETINGS			1
PROPOSED TIMETABLE OF PRINCIPAL EVENTS			11
SUMMARY			12
Information about the Parties			12
The Special Meetings			13
Quorum			13
The Transaction			13
Structure of the Transaction			14
Scheme Consideration to Company Shareholders			14
Treatment of Company Equity Awards			14
Recommendation of the Board and Reasons for the Transaction			15
Opinion of Goldman Sachs			16
Interests of Certain Persons in the Transaction			16
Irrevocable Undertakings			17
Regulatory Approvals Required			17
Litigation Relating to the Transaction			18
Financing Cooperation			19
Financing			19
Accounting Treatment of the Transaction			19
No Dissenters’ Rights			19
Material Tax Consequences of the Proposed Transaction			19
Scheme Effective Time and Closing of the Transaction			20
Adverse Recommendation Changes and Agreement Not to Solicit Other Offers			20
Conditions to Complete the Transaction			22
Termination of the Transaction Agreement			23
Termination Fee			24
Effect on Delphi Technologies if the Transaction is Not Completed			25
Listing of BorgWarner Shares on NYSE and Delisting and Deregistration of Company Shares			25
RISK FACTORS			26
Risks Relating to the Transaction			26
Risks Relating to BorgWarner Following the Transaction			31
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF BORGWARNER			36
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF DELPHI TECHNOLOGIES			37
SUMMARY UNAUDITED PRO FORMA COMBINED FINANCIAL DATA			39
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS			41
PART 1—THE TRANSACTION AND THE SPECIAL MEETINGS			44
THE SPECIAL MEETINGS OF COMPANY SHAREHOLDERS			44
Overview			44
Time, Place, Date and Purpose of the Special Meetings			44
Attendance			44
Proposals			45
Record Date; Outstanding Company Shares; Company Shares Entitled to Vote			45
Quorum			45
Company Share Ownership and Voting by Delphi Technologies’ Directors and Officers			46
Vote Required; Recommendation of the Board			46
Voting Your Company Shares			47
Voting Company Shares Held in Street Name			48
Revoking Your Proxy			49
Costs of Solicitation			49

 

i

Other Business			50
Adjournment			50
Assistance			50
THE TRANSACTION			51
The Transaction			51
Background of the Transaction			51
Recommendation of the Board and Reasons for the Transaction			67
Opinion of Goldman Sachs			73
Delphi Technologies Unaudited Prospective Financial Information			84
Interests of Certain Persons in the Transaction			87
Regulatory Approvals Required			95
Litigation Relating to the Transaction			96
Financing			97
Accounting Treatment of the Transaction			97
Certain U.S. Federal Securities Law Matters			97
Restrictions on Sales of BorgWarner shares received in the Transaction			98
Effect on Delphi Technologies if the Transaction is Not Completed			98
Payment of Consideration			98
NO DISSENTERS’ RIGHTS			99
MATERIAL TAX CONSEQUENCES OF THE PROPOSED TRANSACTION			100
Material U.S. Federal Income Tax Considerations			100
Jersey Taxation			102
LISTING OF BORGWARNER SHARES ON NYSE AND DELISTING AND DEREGISTRATION OF COMPANY SHARES			103
INFORMATION ABOUT THE PARTIES			104
THE TRANSACTION AGREEMENT			105
Explanatory Note Regarding the Transaction Agreement			105
Structure of the Transaction			105
Scheme Effective Time and Closing of the Transaction			106
Scheme Consideration to Company Shareholders			106
Treatment of Company Equity Awards			107
Scheme of Arrangement			107
Conversion of Shares			107
Lost, Stolen or Destroyed Share Certificates			108
Termination of the Exchange Fund			108
Tax Withholding			108
Adjustments to Prevent Dilution			109
Representations and Warranties			109
Definition of Material Adverse Effect			110
Covenants and Agreements			111
Adverse Recommendation Changes and Agreement Not to Solicit Other Offers			116
Litigation			119
Financing Cooperation			119
Company Shareholder Meetings			121
Expenses and Fees			122
Irrevocable Undertakings			122
Employee Matters			122
Indemnification and Insurance			123
Conditions to Complete the Transaction			124
Termination of the Transaction Agreement			125
Termination Fee			126
Amendment, Waiver, Extension and Specific Performance of the Transaction Agreement			127
Governing Law			127

 

ii

UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION			128
SECURITY OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL OWNERS			146
Security Ownership of Certain Beneficial Owners			146
Share Ownership of Directors and Executive Officers			147
COMPANY SHAREHOLDER VOTE ON SPECIFIED COMPENSATORY ARRANGEMENTS			148
Advisory Vote on Golden Parachute Compensation			148
DESCRIPTION OF BORGWARNER CAPITAL STOCK			149
COMPARISON OF THE RIGHTS OF BORGWARNER STOCKHOLDERS AND DELPHI TECHNOLOGIES SHAREHOLDERS			153
FUTURE SHAREHOLDER MEETINGS			182
HOUSEHOLDING OF PROXY STATEMENT			183
WHERE YOU CAN FIND MORE INFORMATION			184
PART 2—EXPLANATORY STATEMENT			186
1. INTRODUCTION			186
2. THE TRANSACTION			186
3. CONDITIONS			187
4. COURT MEETING AND EXTRAORDINARY GENERAL MEETING			187
5. SANCTION OF THE SCHEME OF ARRANGEMENT BY THE COURT			190
6. BOARD OF DIRECTORS, MANAGEMENT AND EMPLOYEES			191
7. EQUITY AWARD HOLDERS			192
8. DIRECTORS  & EXECUTIVE OFFICERS AND THE EFFECT OF THE SCHEME ON THEIR INTERESTS			192
9. TAXATION			193
10. TRANSFER, SETTLEMENT, LISTING AND DEALINGS			193
11. OVERSEAS SHAREHOLDERS			194
12. ACTION TO BE TAKEN			195
13. FURTHER INFORMATION			195
PART 3—THE SCHEME OF ARRANGEMENT			196
ANNEX A: TRANSACTION AGREEMENT			A-1
ANNEX B: AMENDMENT AND CONSENT AGREEMENT			B-1
ANNEX C: OPINION OF GOLDMAN SACHS			C-1
ANNEX D: IRREVOCABLE UNDERTAKINGS			D-1

 

iii

QUESTIONS AND ANSWERS ABOUT THE TRANSACTION AND THE SPECIAL MEETINGS

The following questions and answers are intended to address briefly some commonly asked questions regarding the transaction and each special meeting. These questions and answers highlight only some of the information contained in this proxy statement. They may not contain all the information that is important to you. You should read carefully this entire proxy statement, including the annexes and the documents incorporated by reference into this proxy statement, to understand fully the proposed transactions and the voting procedures for the special meetings. For details on how you may obtain additional information, see “Where You Can Find More Information” beginning on page 184. Unless otherwise specified, all references in this proxy statement to “Delphi Technologies,” the “Company,” “we,” “our,” “us” and similar words refer to Delphi Technologies PLC, a public limited company incorporated under the laws of the Bailiwick of Jersey; all references in this proxy statement to “BorgWarner” refer to BorgWarner Inc., a Delaware corporation; all references to the “Board” refers to the Company board of directors; all references to “Company shares” refers to ordinary shares of the Company, par value $0.01 per share; all references to the “original transaction agreement” refer to the Transaction Agreement, dated as of January 28, 2020, by and between Delphi Technologies and BorgWarner, a copy of which is included as Annex A to this proxy statement; all references to the “amendment” refer to the Amendment and Consent Agreement, dated as of May 6, 2020, by and between Delphi Technologies and BorgWarner, a copy of which is included as Annex B to this proxy statement; all references to the “transaction agreement” refer to the original transaction agreement, as amended by the amendment; and all references to the “opinion of Goldman Sachs” or “opinion of financial advisor” refers to the opinion of Goldman Sachs International (“Goldman Sachs”) received by the Board on May 6, 2020, a copy of which is included as Annex C to this proxy statement. Unless otherwise indicated, all references to “dollars” or “$” in this proxy statement are references to U.S. dollars. You should carefully read and consider the entire transaction agreement, which is the legal document that governs the transaction.

 

Q:	Why am I receiving this proxy statement?

 

A:

Delphi Technologies and BorgWarner have entered into the transaction agreement, pursuant to which BorgWarner or its subsidiary will acquire Delphi Technologies by means of a Jersey “scheme of arrangement,” or “scheme,” which is referred to in this proxy statement as the “acquisition” or the “transaction.”

The Royal Court of Jersey (the “Court”) has ordered the convening of a special Court-ordered meeting of Company shareholders (the “Court Meeting”) in order to obtain shareholder approval of the scheme of arrangement. Following the Court Meeting, the Company will hold an extraordinary general meeting of Company shareholders (the “extraordinary general meeting”) in order to obtain shareholder approval of a related proposal necessary to implement the scheme of arrangement and a non-binding advisory proposal to approve certain compensation arrangements for the Company’s named executive officers. The Court Meeting and the extraordinary general meeting held via live webcast are referred to as the “special meetings.”

It will not be possible to complete the acquisition unless the requisite Company shareholder approvals described below are obtained at each special meeting. However, the acquisition is not conditioned on approval of the non-binding advisory proposal at the extraordinary general meeting as described below.

We have included in this proxy statement important information about the acquisition, the transaction agreement and the special meetings. You should read this information carefully and in its entirety. If you are a shareholder whose name appears in the register of shareholders of Delphi Technologies (a “shareholder of record”), you are receiving two mailings, one mailing that includes a form of proxy with instructions for voting at the Court Meeting and a second mailing that includes a form of proxy with instructions for voting at the extraordinary general meeting. You may vote your Company shares without attending the applicable special meeting by granting a proxy or voting your Company shares by mail, telephone or over the internet following the instructions provided in the applicable form of proxy. If you hold your shares through a broker, bank, trust or other nominee, you should follow the instructions provided by your broker, bank, trust or other nominee in order to instruct them how to vote such shares.

 

1

Q:	When and where will each special meeting be held?

 

A:

The Court Meeting will be held via live webcast on June 25, 2020 at 9:00 a.m. (Eastern time) (unless adjourned or postponed). The extraordinary general meeting will be held on June 25, 2020 at 9:15 a.m. (Eastern time) (unless adjourned or postponed) or, if the Court Meeting has not concluded by 9:15 a.m. (Eastern time), as soon as possible after the conclusion of the Court Meeting. There will not be a physical meeting location. The special meetings can be attended by visiting www.meetingcenter.io/243532838 and following the instructions on the website, where you will be able to participate in the special meetings live and vote online. The password for the special meetings is DLPH2020. If you are a shareholder of record, in order to vote or submit questions at the special meetings you will need the 15-digit control number located in the shaded bar on the form of proxy you receive for each meeting. If you are a beneficial holder, follow the instructions in the answer to the question below to register for the special meetings and obtain a 15-digit control number to use for each meeting. We encourage you to allow ample time for online check-in procedures. Please be aware that you must bear any costs associated with internet access, such as usage charges from internet access providers and telephone or similar companies.

 

Q:	How do I register to attend the special meetings via webcast on the internet?

 

A:

Shareholders of record as of the Voting Record Time who elect to attend the special meetings and vote online during the special meetings may do so by visiting www.meetingcenter.io/243532838 and following the instructions on the website. The password for the special meetings is DLPH2020. Shareholders of record do not need to register to attend the special meetings via live webcast but will need the 15-digit control number located in the shaded bar on the form of proxy to vote and submit questions at the meetings.

Beneficial holders as of the Beneficial Holder Record Time will be entitled to direct their brokers, banks, trusts or other nominees how to vote such beneficially held shares at the special meetings. Only a broker, bank, trust or other nominee of a beneficial holder can vote such beneficially held shares and the vote cannot be cast unless such beneficial holder provides instructions to such broker, bank, trust or other nominee, or obtains a legal proxy from such broker, bank, trust or other nominee, which entitles such beneficial holder to vote such shares as a proxy for the shareholder of record. To register to attend the special meetings via live webcast and vote during the meetings, beneficial holders must submit such request, along with proof of the legal proxy and the beneficial holder’s name and email address to our transfer agent, Computershare Trust Company, N.A. (“Computershare”). Requests for registration should be directed to: Computershare, attention: Delphi Technologies Legal Proxy, P.O. Box 43001, Providence, RI 02940-3001. Beneficial holders may also forward an email from their broker, bank, trust or other nominee of their legal proxy, or attach an image of their legal proxy, to legalproxy@computershare.com. Requests for registration must be received no later than 5:00 p.m. (Eastern time) on June 18, 2020 in order to ensure timely registration. Beneficial holders will receive a registration confirmation by email after Computershare receives the above requested information.

 

Q:	What will the Company shareholders receive as consideration in the acquisition?

 

A:

As consideration for the acquisition, Company shareholders will be entitled to receive 0.4307 (the “exchange ratio”) of a newly issued share of BorgWarner common stock, par value $0.01 per share (each, a “BorgWarner share”), subject to any required withholding of taxes, in exchange for each Company share held by such Company shareholders and cash in lieu of any fractional share interest of a BorgWarner share (collectively, the “scheme consideration”).

 

Q:	What will holders of Company equity awards receive in the acquisition?

 

A:	Company equity awards will be treated as set forth in the transaction agreement, such that (i) each Company restricted share unit award (other than performance-based restricted share units) that is outstanding as of

 

2

immediately prior to the effective time (each, an “Existing RSU Award”) other than Existing RSU Awards held by certain individuals including certain of our named executive officers (each, a “Scheduled RSU”) and by non-employee members of the Board (each, an “Existing DU Award”), will automatically be converted on the same terms and conditions (including applicable vesting conditions) into an award of restricted share units of BorgWarner covering a number of BorgWarner shares equal to the number of Company shares subject to the Existing RSU Award multiplied by the exchange ratio; (ii) each performance-based restricted share unit outstanding immediately prior to the effective time (each, an “Existing PSU Award”) other than Existing PSU Awards held by certain individuals including certain of our named executive officers (each, a “Scheduled PSU”), will automatically be converted on the same terms and conditions (other than performance-based vesting conditions) into an award of time-vesting restricted share units of BorgWarner covering a number of BorgWarner shares equal to the number of Company shares subject to the Existing PSU Award (determined assuming all performance vesting conditions are achieved at the greater of target and actual performance measured through the effective time) multiplied by the exchange ratio; (iii) each Scheduled RSU, Scheduled PSU and Existing DU Award will be cancelled and converted into the right to receive, for each Company share subject to the Scheduled RSU, Scheduled PSU (determined assuming all performance vesting conditions are achieved at the greater of target and actual performance measured through the effective time) or Existing DU Award, a cash amount equal to (x) the volume-weighted average price of a BorgWarner share for the period of 10 consecutive trading days ending on the second full trading day prior to the effective time (the “Closing Volume-Weighted Average Price”) multiplied by (y) the exchange ratio (the “Cash Value”); and (iv) each stock option to purchase Company shares, whether vested or unvested, outstanding as of immediately prior to the effective time (each, an “Existing Option”) will automatically be cancelled and converted into the right to receive a cash amount equal to the product of (a) the excess, if any, of the Cash Value over the exercise price per Company share of such Existing Option multiplied by (b) the total number of Company shares subject to such Existing Option. Notwithstanding the foregoing, any payments relating to an Existing RSU Award, Existing PSU Award or Existing DU Award will be delayed to the extent required by Section 409A of the Code.

 

Q:	Why did the Company and BorgWarner enter into the amendment?

 

A:

On March 30, 2020, in response to the impact of the COVID-19 pandemic on the Company’s business, the Company drew the full $500 million available under its revolving credit facility (the “Revolver Draw”) without obtaining BorgWarner’s consent, following several attempts to reach agreement with BorgWarner on the terms under which it would be willing to do so. BorgWarner alleged that the Company materially breached the original transaction agreement by effecting the Revolver Draw without BorgWarner’s consent and asserted that, if such alleged breach was not cured within 30 days of the Revolver Draw, BorgWarner would have the right to terminate the original transaction agreement. The Company disputed BorgWarner’s breach assertion on the basis that, among other things, BorgWarner unreasonably withheld and conditioned its consent in material breach of the original transaction agreement. On May 6, 2020, the Company and BorgWarner resolved their breach dispute by entering into the amendment. For more information, see “The Transaction—Background of the Transaction” beginning on page 51.

 

Q:	What is the effect of the amendment?

 

A:

On May 6, 2020, the Company and BorgWarner resolved their breach dispute by entering into the amendment pursuant to which, among other things, BorgWarner consented to the Revolver Draw and certain other matters, subject to the terms and conditions contained in the amendment. The amendment also amends the original transaction agreement to: (i) reduce the exchange ratio to 0.4307 of a BorgWarner share for each Company share and (ii) include the following additional closing conditions: (a) that the Company’s net debt-to-adjusted LTM EBITDA (the “leverage ratio”) not exceed (x) 6.5 to 1.0 if the closing occurs on or before September 30, 2020, and (y) 7.5 to 1.0 if the closing occurs on or after October 1, 2020, (b) that on the date immediately prior to closing, the Company’s outstanding revolver borrowings do not exceed $225 million, and (c) that on the date immediately prior to closing, the Company’s outstanding revolver

 

3

borrowings, net of cash balances, do not exceed $115 million. For more information, see “The Transaction Agreement—Conditions to Complete the Transaction” beginning on page 124.

 

Q:	Have the terms of the transaction otherwise changed since the Company announced that it had entered into the original transaction agreement with BorgWarner?

 

A:	No. Other than as set forth in the amendment, the terms of the original transaction agreement have not changed since the announcement of the transaction on January 28, 2020.

 

Q:	Who is entitled to vote?

 

A:

Shareholders of record as of 6:00 p.m. (Jersey time) on June 18, 2020 or 6:00 p.m. (Jersey time) on the date which is five business days prior to any adjournment or postponement of the Court Meeting (as the case may be) (the “Voting Record Time”) are entitled to attend the special meetings via live webcast and vote at the special meetings or they may appoint another person or persons, whether a Company shareholder or not, as their proxy or proxies, to exercise all or any of their rights to attend, speak and vote at the special meetings.

Shareholders who beneficially own Company shares for which Cede & Co. is the registered holder (as nominee for The Depository Trust Company) and whose interests in Company shares are held in “street name” by a broker, bank, trust or other nominee (“beneficial owners” or “beneficial holders”) as of the close of business (Eastern time) on May 1, 2020 (the “Beneficial Holder Record Time”) will be entitled to direct their broker, bank, trust or other nominee how to vote such beneficially held shares at the special meetings.

 

Q:	What proposals are being voted on at each special meeting and what shareholder vote is required to approve those proposals?

 

A:	Company shareholders are being asked to vote on one proposal related to the scheme at the Court Meeting and one proposal related to the scheme at the extraordinary general meeting. However, the vote required to approve each such proposal is different at each of the special meetings.

The acquisition is conditioned on the approval of the scheme at the Court Meeting (the “Scheme Proposal”). As set out in full under the section entitled “Part 2—Explanatory Statement” beginning on page 186, the Scheme Proposal must be approved by (a) a majority in number of the Company shareholders of record as of the Voting Record Time that are present and voting (in person via live webcast or by proxy) at the Court Meeting and (b) at least 75% of the votes cast by the Company shareholders present and voting (in person via live webcast or by proxy).

The vote required to approve the Scheme Proposal at the Court Meeting is based on votes properly cast at the meeting by shareholders of record. Broker non-votes (as defined below) are not considered votes properly cast and will have no effect on such proposal. In accordance with Jersey law, abstentions are not permitted with respect to the Scheme Proposal.

 

4

Set forth below is a table summarizing certain information with respect to the resolutions to be voted on at the extraordinary general meeting:

 

Extraordinary General Meeting Resolution #		Resolution		Ordinary or Special Resolution?		Transaction Conditioned on Approval of Resolution?
1		Authorize the directors of Delphi Technologies to take all such actions as they consider necessary or appropriate for carrying the scheme of arrangement into effect and to amend the articles of association of Delphi Technologies so that any Company shares that are issued on or after the Voting Record Time to persons other than BorgWarner or its nominees will either be subject to the terms of the scheme or immediately and automatically acquired by BorgWarner and/or its nominee(s) for the scheme consideration (the “Scheme and Articles Amendment Proposal”).		Special		Yes
2		Approve, on a non-binding, advisory basis, the golden parachute compensation, as disclosed pursuant to Item 402(t) of Regulation S-K in the Golden Parachute Compensation Table and the footnotes to that table contained in the section of this proxy statement captioned “The Transaction—Interests of Certain Persons in the Transaction” (the “Compensation Proposal” and together with the Scheme and Articles Amendment Proposal, the “Company Shareholder Proposals”).		Ordinary		No

At the extraordinary general meeting, the requisite shareholder approval of each of the resolutions depends on whether it is an “ordinary resolution” (Resolution #2), which requires the approval of at least a majority of the votes cast by Company shareholders present and voting (in person via live webcast or by proxy), or a “special resolution” (Resolution #1), which requires the approval of at least two-thirds (2/3) of the votes cast by Company shareholders present and voting (in person via live webcast or by proxy). The votes required to approve the Company Shareholder Proposals are based on Company shareholder votes properly cast at the extraordinary general meeting. Abstentions and broker non-votes will be counted for purposes of determining a quorum but not for purposes of determining the number of votes properly cast. As a result, abstentions and broker non-votes will have no effect on the Company Shareholder Proposals.

As of May 21, 2020, the Company directors and executive officers had the right to vote less than one percent of the Company shares then outstanding and entitled to vote at the Court Meeting and the extraordinary general meeting. It is expected that the Company’s directors and executive officers will vote “FOR” each of the proposals at the Court Meeting and the extraordinary general meeting, although none of them have entered into any agreement or instrument requiring them to do so, except with respect to certain officers who have executed irrevocable undertakings as described below under the heading “The Transaction Agreement—Irrevocable Undertakings” beginning on page 122.

Your vote is very important. It is important that as many votes as possible are cast, so that the Court may be satisfied that there is a fair and reasonable representation of the opinion of the Company shareholders. Shareholders of record are receiving two mailings, one mailing that includes a form of proxy with instructions for voting at the Court Meeting and a second mailing that includes a form of proxy with instructions for voting at the extraordinary general meeting. You are encouraged to submit a form of proxy (or vote by telephone or over the internet following the instructions in the form of proxy) for each of the Court Meeting and the extraordinary general meeting as soon as possible. Beneficial holders will receive voting instructions applicable to each special meeting from their broker, bank, trust or other nominee. Beneficial holders should follow the directions provided by their broker, bank, trust or other nominee regarding how to instruct such broker, bank, trust or nominee to vote their beneficially held shares. The Board recommends that you vote “FOR” each of the proposals at the Court Meeting and the extraordinary general meeting.

 

5

Q:	Why are there different record dates for shareholders of record and beneficial owners of Company shares?

 

A:

As described in response to the question titled “What proposals are being voted on at each special meeting and what shareholder vote is required to approve those proposals?” above, in addition to the Scheme Proposal being approved by at least 75% of the votes cast at the Court Meeting by the Company shareholders present and voting (in person via live webcast or by proxy), the Scheme Proposal must also be approved by a majority in number of the Company shareholders as of the Voting Record Time that are present and voting (in person via live webcast or by proxy) at the Court Meeting. Under Jersey law, only shareholders of record are counted in the number of holders entitled to vote and who are present for purposes of the voting requirements.

The Company established the close of business (Eastern time) on May 1, 2020, as the Beneficial Holder Record Time in order to provide (i) all Company shareholders, including beneficial owners of Company shares, with sufficient notice of the Court Meeting and the extraordinary general meeting and (ii) Cede & Co. (as nominee for The Depository Trust Company) and brokers, banks, trusts or other nominees with sufficient time to obtain voting instructions from beneficial owners.

However, in order to determine the final number of shareholders of record on the Company’s share register maintained by Computershare for purposes of the voting requirements described above, the Company has established 6:00 p.m. (Jersey time) on June 18, 2020, as the Voting Record Time.

 

Q:	Why are there two special meetings?

 

A:	At the Court Meeting, Company shareholders will be asked to approve the scheme for purposes of satisfying Jersey legislation requirements.

At the extraordinary general meeting, Company shareholders will also be asked to authorize the directors of the Board to take all actions as they consider necessary or appropriate for carrying the scheme into effect and to amend the Company’s articles of association. For more details on these matters, see “The Special Meetings of Company Shareholders” beginning on page 44. In addition, the Company’s 2019 audited financial statements will be laid before the extraordinary general meeting to comply with the Company’s obligations to do so within seven-months of its fiscal year end pursuant to the Companies (Jersey) Law 1991, as amended (the “Companies Law”).

Both special meetings are necessary to cause the scheme of arrangement to become effective.

 

Q:	What constitutes a quorum?

 

A:

Two or more Company shareholders that are present (in person via live webcast or by proxy) will constitute a quorum for the Court Meeting. One or more Company shareholders that are present (in person via live webcast or by proxy) representing a majority of the voting power of Delphi Technologies will constitute a quorum for the extraordinary general meeting. Delphi Technologies does not currently hold any Company shares in treasury (although any such shares would not be included in the calculation of the number of Company shares present at the special meetings for purposes of determining a quorum in any event). The Company’s inspector of election, Computershare, intends to treat as “present” for these purposes Company shareholders who have submitted properly executed or if applicable, transmitted proxies with respect to the extraordinary general meeting that are marked “abstain.” The Company’s inspector of election will also treat as “present” shares held in “street name” by brokers that are voted by such brokers that have not been directed by the beneficial owners to vote on any resolution in any particular manner.

 

6

Q:	What is the recommendation of the Company Board regarding the proposals being put to a vote at each special meeting?

 

A:

The Board (excluding Timothy M. Manganello and Robin J. Adams who have recused themselves due to their respective ownership of BorgWarner shares) has (i) unanimously approved and declared advisable the transaction agreement, the transactions contemplated thereby and the scheme (including the execution, delivery and performance of the transaction agreement and the consummation of such transactions and the scheme) and (ii) declared that it is in the best interests of the Company shareholders that Delphi Technologies enter into the transaction agreement and consummate such transactions and the scheme. Except where expressly stated otherwise, each reference to the Board (or any meeting thereof) in this proxy statement is intended to refer to that Board (or meeting) without any voting, recommendation or solicitation, as the case may be, by Messrs. Manganello and Adams, who have recused themselves from such voting, recommendation or solicitation.

The Board recommends that Company shareholders vote:

 

•

“FOR” the Scheme Proposal;

 

•

“FOR” the Scheme and Articles Amendment Proposal; and

 

•

“FOR” the Compensation Proposal

The Board’s recommendation that Company shareholders vote in favor of the Scheme Proposal and the Scheme and Articles Amendment Proposal are referred to as the “Board Recommendation.” For additional details, see “The Transaction—Recommendation of the Board and Reasons for the Transaction” beginning on page 67. In considering the recommendation of the Board, you should be aware that certain directors and executive officers of Delphi Technologies have interests in the proposed transaction that are in addition to, or different from, any interests they might have as Company shareholders. For more information, see “The Transaction—Interests of Certain Persons in the Transaction” beginning on page 87.

 

Q:	When is the transaction expected to be completed?

 

A:

As of the date of this proxy statement, the transaction is expected to be completed in the second half of 2020. However, no assurance can be provided as to when or if the transaction will be completed. The required vote of Company shareholders to approve the Scheme Proposal and the Scheme and Articles Amendment Proposal at the special meetings, as well as the necessary regulatory consents and approvals, must be satisfied or, to the extent applicable, waived before the transaction is completed.

 

Q:	What happens if the transaction is not completed?

 

A:

If the Scheme Proposal and the Scheme and Articles Amendment Proposal are not approved by the requisite vote of Company shareholders at the special meetings or if the transaction is not completed for any other reason, Company shareholders will not receive any BorgWarner shares in consideration for their Company shares. Instead, Delphi Technologies will remain an independent public company and the Company shares will continue to be listed and traded on the New York Stock Exchange (“NYSE”). Under the transaction agreement, Delphi Technologies may be required to pay BorgWarner a termination fee of $53.5 million if the transaction agreement is terminated under certain circumstances. For more information, see “The Transaction Agreement—Termination Fee” beginning on page 126.

 

Q:	What if I sell my Company shares after the Beneficial Holder Record Time or the Voting Record Time (as applicable)?

 

A:

If you transfer your shares after the Beneficial Holder Record Time or the Voting Record Time (whichever is applicable to you) but before either special meeting, you will retain your right to vote at both special meetings but will have transferred the right to receive the scheme consideration. In order to receive the scheme consideration you must hold your shares through the completion of the transaction.

 

7

Q:	What if I buy Company shares after the Beneficial Holder Record Time or the Voting Record Time (as applicable)?

 

A:

If you acquire additional Company shares from a beneficial holder after the Beneficial Holder Record Time or a shareholder of record after the Voting Record Time, you will not have the right to vote in respect of those additional Company shares at either special meeting. You will have the right to receive the scheme consideration in respect of those additional Company shares if you hold such shares through the completion of the transaction.

 

Q:	How do I vote?

 

A:	If you are a shareholder of record, you will receive two forms of proxy (one for the Court Meeting and one for the extraordinary general meeting). You may vote your Company shares at each Company special meeting in one of the following ways:

 

•

by mailing your applicable completed and signed form of proxy in the enclosed return envelope;

 

•

by voting by telephone or over the internet as instructed on the applicable form of proxy; or

 

•

by attending the applicable special meeting via live webcast and voting during the meeting online by visiting www.meetingcenter.io/243532838, with the password DLPH2020 and the 15-digit control number located in the shaded bar on the forms of proxy.

If you hold your Company shares through a broker, bank, trust or other nominee, you should follow the instructions provided by your broker, bank, trust or other nominee in order to instruct them how to vote your Company shares.

In the case of joint holders, the vote of the senior member who tenders a vote (in person via live webcast or by proxy) will be accepted to the exclusion of the votes of the other joint holders of record and, for this purpose, seniority will be determined by the order in which the names first appear in the Company’s register of members in respect of the joint holding.

 

Q:	If my shares are held in “street name” by my broker, bank, trust or other nominee, will my broker, bank, trust or other nominee automatically vote my shares for me?

 

A:

No. Your broker, bank, trust or other nominee will not vote your Company shares if you do not provide your broker, bank, trust or other nominee with a signed voting instruction form with respect to your Company shares, such failure to vote being referred to as a broker non-vote. Therefore, you should instruct your broker, bank, trust or other nominee to vote your Company shares by following the directions your broker, bank, trust or other nominee provides.

Brokers do not have discretionary authority to vote on any of the Company proposals at either special meeting.

 

Q:	How many votes do I have?

 

A:

At each special meeting, you are entitled to one vote for each Company share that you owned as of the Beneficial Holder Record Time, if you are a beneficial holder, or as of the Voting Record Time, if you are a shareholder of record. Each beneficial owner of Company shares as of the Beneficial Holder Record Time will be entitled to direct his or her broker, bank, trust or other nominee how to vote such Company shares on all resolutions proposed at the Court Meeting and the extraordinary general meeting. As of the Beneficial Holder Record Time, there were 86,349,731 Company shares outstanding and entitled to vote at each of the Court Meeting and the extraordinary general meeting.

 

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Q:	Should I send in my share certificates now?

 

A:	No. Company shareholders that hold share certificates should keep their existing stock certificates at this time. After the transaction is completed, you will receive written instructions for exchanging your Company shares for the scheme consideration.

 

Q:	What do I need to do now?

 

A:

Company shareholders entitled to vote at the Court Meeting have been sent a form of proxy for that meeting, and Company shareholders entitled to vote at the extraordinary general meeting have been separately sent a form of proxy for that meeting. Company shareholders are strongly urged to complete and return both forms of proxy as soon as possible and, in any event, no later than noon (Eastern time) on June 23, 2020. Even if you plan to attend either or both special meetings, we encourage you to vote by proxy before the special meeting(s) that you plan to attend. After carefully reading and considering the information contained in this proxy statement, including the annexes and the documents incorporated by reference, please submit your proxy or proxies by telephone or over the internet in accordance with the instructions set forth on the applicable form of proxy, or mark, sign and date the applicable form of proxy and return it with the enclosed prepaid envelope as soon as possible so that your Company shares may be voted at the applicable special meeting. Your form of proxy or your telephone or internet directions will instruct the persons identified as your proxy to vote your Company shares at the applicable special meeting as directed by you.

If a Company shareholder signs and returns his, her or its form of proxy appointing the individuals referred to on the form of proxy of the applicable special meeting as his, her or its proxy but does not mark the form of proxy to tell the proxy how to vote on a proposal, such shares will be voted in respect of such proposal at the discretion of the named proxies of the applicable special meeting.

If you hold your Company shares through a broker, bank, trust or other nominee, you should follow the instructions provided by your broker, bank, trust or other nominee when instructing them how to vote your Company shares.

 

Q:	Are shareholders entitled to appraisal or dissenters’ rights?

 

A:	Company shareholders are not entitled to appraisal or dissenters’ rights in connection with the transaction.

 

Q:	May I attend the Court hearing to sanction the scheme of arrangement?

 

A:

Company shareholders are entitled to attend and be heard at the Court hearing to sanction the scheme of arrangement (the “Court Hearing”), either in person or by live video link or through a Jersey advocate, to support or oppose the scheme. The Court’s address is Royal Court House, Royal Square, St Helier, Jersey JE1 1JG and its telephone number is +44 1534 441 300. The Company will disclose the date of the Court Hearing by public announcement and filing with the Securities and Exchange Commission (the “SEC”) after it has been scheduled and no later than 14 days before the Court Hearing.

 

Q:	May I change my vote after I have mailed my signed forms of proxy or voted by telephone or over the internet?

 

A:	Yes, you may change your vote before your proxy is voted at the Court Meeting or before your proxy is voted at the extraordinary general meeting.

If you are a shareholder of record, you can do this in one of four ways:

 

•

sign and return by mail a valid form of proxy for the applicable special meeting with a later date so that it is received prior to noon (Eastern time) on June 23, 2020;

 

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•

before the applicable special meeting, provide written notice that you have revoked your proxy for the applicable special meeting to the Company’s Assistant Corporate Secretary, as applicable, so that it is received by noon (Eastern time) on June 23, 2020 at the following address:

Delphi Technologies PLC

3000 University Drive

Auburn Hills, Michigan 48326

Attention: Assistant Corporate Secretary;

 

•

submit revised voting instructions by telephone or over the internet by following the instructions set forth on the applicable form of proxy; or

 

•

attend the applicable special meeting via live webcast and vote during the meeting online by visiting www.meetingcenter.io/243532838, with the password DLPH2020 and the 15-digit control number located in the shaded bar on the form of proxy. Simply attending the applicable special meeting, however, will not revoke your proxy or change your voting instructions; you must vote online at the applicable special meeting to change your vote.

If you are a beneficial holder and have instructed a broker, bank, trust or other nominee to vote your shares, you must follow directions received from your broker, bank, trust or other nominee to change your vote or revoke your proxy.

 

Q:	Who can help answer my questions?

 

A:

If you have questions about the transaction, or if you need assistance in submitting your proxy or voting your shares or need additional copies of this proxy statement or the forms of proxy that you receive, you should contact Innisfree M&A Incorporated, the proxy solicitation agent for Delphi Technologies by telephone. Shareholders may call toll-free at (877) 456-3463; banks and brokers may call collect at (212) 750-5833.

If your Company shares are held by a broker, bank, trust or other nominee, you should contact your broker, bank, trust or other nominee for additional information.

 

Q:	What are the U.S. federal income tax consequences of the transaction?

 

A:

For U.S. federal income tax purposes, the receipt of BorgWarner shares and cash in lieu of any fractional shares in exchange for Company shares pursuant to the scheme is expected to be a taxable transaction, and a U.S. holder (as defined in the section of this proxy statement captioned “Material Tax Consequences of the Proposed Transaction—Material U.S. Federal Income Tax Considerations”) will generally recognize gain or loss equal to the difference, if any, between (i) the sum of the fair market value of the BorgWarner shares and cash in lieu of any fractional shares received in the scheme and (ii) the U.S. holder’s adjusted tax basis in the Company shares surrendered in exchange therefor. Holders of Company shares should read the section captioned “Material Tax Consequences of the Proposed Transaction” beginning on page 100.

 

Q:	Where can I find more information about Delphi Technologies?

 

A:	You can find more information about Delphi Technologies from various sources described under “Where You Can Find More Information” beginning on page 184.

 

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PROPOSED TIMETABLE OF PRINCIPAL EVENTS

All dates and times are based on the Company’s and BorgWarner’s current expectations and are subject to change. Terms used but not defined in “Proposed Timetable of Principal Events” shall have the meanings given to them in the scheme of arrangement. If any of the dates and/or times in this expected timetable change, Delphi Technologies will publicly announce the changes.

 

Beneficial Holder Record Time for Court Meeting and extraordinary general meeting		Close of business (Eastern time) on May 1, 2020
Voting Record Time for Court Meeting and extraordinary general meeting		6:00 p.m. (Jersey time) on June 18, 2020
Latest time for receipt of Forms of Proxy for Court Meeting		Noon (Eastern time) on June 23, 2020
Latest time for receipt of Forms of Proxy for extraordinary general meeting		Noon (Eastern time) on June 23, 2020
Court Meeting		9:00 a.m. (Eastern time) on June 25, 2020
Extraordinary general meeting		9:15 a.m. (Eastern time) on June 25, 2020, or if the Court Meeting has not concluded by 9:15 a.m. (Eastern time), as soon as possible after the conclusion of the Court Meeting
Court Hearing to sanction the scheme		Delphi Technologies will disclose the date of the Court Hearing by public announcement and SEC filing after it has been scheduled and no less than 14 days before the Court Hearing

 

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RISK FACTORS

In addition to the other information contained in or incorporated by reference into this proxy statement, you should consider carefully the following risk factors, including the matters addressed under the caption “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 41. You should also read and consider the risks associated with the business of BorgWarner and the risks associated with the business of the Company because these risks will also affect BorgWarner following the completion of the transaction. The risks associated with the business of BorgWarner (including related to and following the transaction) can be found in BorgWarner’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 and Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2020, as updated from time to time by BorgWarner’s subsequent filings with the SEC, which are incorporated by reference into this proxy statement. The risks associated with the business of the Company (including related to the transaction) can be found in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 and Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2020, as updated from time to time by the Company’s subsequent filings with the SEC, which are incorporated by reference into this proxy statement. For details on how you may obtain additional information, see “Where You Can Find More Information” beginning on page 184.

Risks Relating to the Transaction

The number of BorgWarner shares that Company shareholders will be entitled to receive as a result of the transaction is based on a fixed exchange ratio (except for adjustments in certain limited circumstances pursuant to the transaction agreement). Because the market price of BorgWarner shares will fluctuate, the value of the BorgWarner shares that Company shareholders receive could be different than at the time that this proxy statement is mailed to Company shareholders, at the time that Company shareholders vote to approve the scheme, and at the effective time.

At completion of the transaction, Company shareholders will be entitled to receive, subject to any required withholding of taxes, 0.4307 of a newly issued BorgWarner share in exchange for each Company share. The number of BorgWarner shares that Company shareholders will be entitled to receive will not be adjusted in the event of any increase or decrease in the market price of either BorgWarner shares or Company shares prior to the effective time.

The market value of BorgWarner shares that Company shareholders will be entitled to receive when the transaction is completed could vary significantly from the market value of BorgWarner shares on the date of this proxy statement, the date of the special meetings, and the effective time. The market prices of BorgWarner shares and Company shares have fluctuated since the date of the announcement of the parties’ entry into the original transaction agreement and will continue to fluctuate from the date of this proxy statement to the time the transaction is completed and thereafter. Because the exchange ratio will not be adjusted to reflect any changes in the market value of BorgWarner shares or Company shares, such market price fluctuations may affect the value that Company shareholders will be entitled to receive upon completion of the transaction. Market price changes may result from a variety of factors, including changes in the business, operations or prospects of BorgWarner or the Company, market assessments of the likelihood that the transaction will be completed, the timing of the transaction, regulatory considerations, general market and economic conditions and other factors. Shareholders are urged to obtain current market quotations for BorgWarner shares and Company shares.

The transaction is subject to a number of closing conditions, including conditions related to required shareholder approvals, required regulatory approvals and the Company’s financial performance and liquidity, and may not be completed on a timely basis, or at all.

The completion of the transaction is subject to a number of conditions and there can be no assurance that the conditions to the closing of the transaction will be satisfied or waived (to the extent permitted by the transaction

 

26

agreement). The failure to satisfy the required conditions could delay the completion of the transaction for a significant period of time or prevent the completion of the transaction from occurring at all.

These closing conditions include (i) the approval of the Scheme Proposal at the Court Meeting (or at any adjournment or postponement of such meeting) by (a) a majority in number of the Company shareholders of record as of the Voting Record Time that are present and voting (in person or by proxy) and (b) at least 75% of the votes cast by the Company shareholders present and voting (in person or by proxy) and (ii) the approval of the Scheme and Articles Amendment Proposal at the extraordinary general meeting (or at any adjournment or postponement of such meeting) by at least two-thirds (2/3) of the votes cast by the Company shareholders present and voting (in person or by proxy).

These closing conditions also include (i) certain antitrust related approvals and clearances and (ii) obtaining all consents of certain specified governmental entities in various jurisdictions and the expiration or termination of any applicable waiting periods with respect thereto shall have expired or been terminated, as the case may be. BorgWarner and the Company derive revenues in non-U.S. jurisdictions where merger control filings or clearances are required and are required or have agreed to obtain authorizations, consents, orders, approvals or clearances, or observe applicable waiting periods, under applicable antitrust or competition laws in certain non-U.S. jurisdictions. The transaction cannot be consummated until after the applicable waiting periods have expired or the relevant approvals or clearances have been obtained from the European Commission and under the applicable antitrust and competition laws of China, South Korea, Mexico, Russia and Turkey. The governmental agencies from which the parties will seek certain clearances, approvals and consents related to these conditions have broad discretion in administering the governing regulations. As a condition to their approval of the transaction, agencies may impose requirements, limitations or costs or require divestitures or place restrictions on the conduct of the combined company’s business after completion of the transaction. Such requirements, limitations, costs or restrictions could delay or prevent the consummation of the transaction or have a material adverse effect on BorgWarner’s business and results of operations following completion of the transaction.

The closing conditions also include other legal and regulatory conditions, such as (i) the sanction by the Court of the scheme and delivery of the Court order to the Registrar of Companies in Jersey, (ii) the approval by the NYSE of the listing of BorgWarner shares issued to the Company’s shareholders in connection with the transaction, and (iii) no order, injunction, decree or other legal restraint by any court or other tribunal of competent jurisdiction or governmental entity shall be in effect and no law shall have been adopted or be effective, in each case, that prohibits, prevents, restrains or renders illegal the completion of the transaction; provided, that with respect to any such order, injunction, decree or other legal restraint that relates to antitrust laws or foreign investment laws, this condition only applies with respect to any such order, injunction, decree or other legal restraint entered or adopted by a jurisdiction where the consent of or filing with a governmental entity of such jurisdiction is required in order to satisfy the closing conditions related to antitrust approvals and clearances described in the preceding paragraph.

In addition, on May 6, 2020, the Company entered into the amendment with BorgWarner which includes the following additional closing conditions: (i) that the Company’s leverage ratio does not exceed (x) 6.5 to 1.0 if the closing occurs on or before September 30, 2020, and (y) 7.5 to 1.0 if the closing occurs on or after October 1, 2020, (ii) that on the date immediately prior to closing, the Company’s outstanding revolver borrowings do not exceed $225 million, and (iii) that on the date immediately prior to closing, the Company’s outstanding revolver borrowings, net of cash balances, do not exceed $115 million.

The transaction is also subject to other customary closing conditions, including, among others: (i) the accuracy of each party’s representations and warranties made in the transaction agreement, subject to specified materiality qualifiers and (ii) the performance and compliance by each party of all of its obligations and compliance with all of its covenants under the transaction agreement in all material respects.

For a more complete summary of the conditions that must be satisfied or waived prior to the completion of the transaction, see “The Transaction Agreement—Conditions to Complete the Transaction” beginning on page 124. There can be no assurance that the conditions to complete the transaction will be satisfied or waived or that the transaction will be completed within the expected time frame or at all.

 

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The transaction agreement contains provisions that limit the Company’s ability to pursue alternatives to the transaction and, in specified circumstances, could require the Company to pay the Termination Fee to BorgWarner.

Under the transaction agreement, the Company is subject to customary “no shop” obligations that prohibit the Company from soliciting, entering into discussions concerning, or furnishing non-public information in connection with, any acquisition proposal from third parties, subject to certain “fiduciary out” exceptions if the Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that such alternative acquisition proposal constitutes, or would reasonably be expected to lead to, a superior proposal. The Company may terminate the transaction agreement and enter into an agreement providing for a superior proposal only if specified conditions have been satisfied, including a determination by the Board, after consultation with its outside financial advisors and outside legal counsel, that such proposal is more favorable to the Company’s shareholders, from a financial point of view, than the transaction. The transaction agreement provides that the Company will pay the Termination Fee to BorgWarner if, among other things, the Company terminates the agreement to enter into a superior proposal, if the transaction agreement is terminated following the Board changing its recommendation to its shareholders to vote to approve the transaction, or if the Company willfully and materially breaches its “no shop” obligations. The Termination Fee may also become payable to BorgWarner if the transaction agreement is terminated in certain circumstances and the Company enters into an agreement for an alternative acquisition proposal or consummates an alternative acquisition proposal within 12 months of such termination. These provisions could discourage a third party that may have an interest in acquiring all or a significant part of the Company from considering or proposing that acquisition, even if such third party were prepared to pay consideration with a higher value than the value of the scheme consideration.

Failure to consummate the transaction could negatively impact the share price, future business and financial results of the Company.

If the transaction is not completed, the ongoing business of the Company may be adversely affected and, without realizing any of the potential benefits of having completed the transaction, the Company will be subject to a number of risks, including, among others, the following:

 

•

the Company may experience negative reactions from the financial markets (including a decline in the Company’s share price) and the Company’s customers and employees;

 

•

the Company will still be required to pay certain significant costs and expenses relating to the proposed transaction;

 

•

if the transaction agreement is terminated under specified circumstances, the Company may be obligated to pay the Termination Fee ($53.5 million) to BorgWarner;

 

•

matters relating to the transaction may require substantial commitments of time and resources by the Company’s management team, which could otherwise have been devoted to other opportunities that may have been beneficial to the Company;

 

•

the transaction agreement restricts the Company, without BorgWarner’s prior written consent and subject to certain exceptions, from making certain acquisitions and taking other specified actions until the transaction occurs or the transaction agreement is terminated. These restrictions may prevent the Company from pursuing otherwise attractive business opportunities and making other changes to its business that may arise prior to completion of the transaction or termination of the transaction agreement; and

 

•

the Company may be subject to litigation related to any failure to consummate the transaction.

If the transaction is not completed, these risks, among others, may be realized and may adversely affect the Company’s share price, future business and financial results.

 

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The Company’s shareholders will have a reduced ownership and voting interest after the transaction and will exercise less influence over management.

BorgWarner will issue new BorgWarner shares to Company shareholders in the transaction. Immediately following the completion of the transaction, current Company shareholders are expected to hold approximately fifteen percent (15%) of the outstanding BorgWarner shares on a fully diluted basis. Company shareholders currently have the right to vote for their directors and on other matters affecting the Company. Following completion of the transaction, the BorgWarner shares that Company shareholders receive in exchange for Company shares will represent a percentage ownership of BorgWarner that is smaller than the Company shareholders’ percentage ownership of the Company before the effective time. As a result of this reduced ownership percentage, Company shareholders will have less influence on the management and policies of BorgWarner following the completion of the transaction than they have as to the Company prior to the transaction.

The opinion rendered to the Board by Goldman Sachs on May 6, 2020, was necessarily based on economic, monetary, market and other conditions as in effect on, and the Company Projections and other information made available to Goldman Sachs as of, the date of the opinion. As a result, the opinion does not reflect changes in events or circumstances after the date of such opinion. The Board has not requested, and does not expect to request, an updated opinion from Goldman Sachs reflecting changes in circumstances that may have occurred since the date of the opinion.

The opinion rendered to the Board by Goldman Sachs on May 6, 2020, was provided for the information and assistance of the Board in connection with its consideration of the transaction (as amended by the amendment). The opinion was necessarily based on economic, monetary, market and other conditions as in effect on, and the information made available to Goldman Sachs, as of the date of the opinion. The Board has not requested an updated opinion as of the date of this proxy statement from Goldman Sachs, and the Board does not expect to request an updated opinion prior to completion of the transaction. Changes in the operations and prospects of BorgWarner or the Company, general market and economic conditions and other factors that may be beyond the control of the Company, and on which the opinion was based, may have altered the value of BorgWarner or the Company or the prices of Company shares or BorgWarner shares since the date of the opinion, or may alter such values and prices by the time the transaction is completed. The opinion does not speak as of any date other than the date of the opinion. For a description of the opinion that Goldman Sachs rendered to the Board, see “The Transaction—Opinion of Goldman Sachs” beginning on page 73.

The BorgWarner shares to be received by the Company shareholders upon completion of the transaction carry different rights than Company shares.

Upon completion of the transaction, Company shareholders will no longer be shareholders of the Company, but will instead become stockholders of BorgWarner, and their rights as BorgWarner stockholders will be governed by the terms of BorgWarner’s restated certificate of incorporation, as it may be amended from time to time, and BorgWarner’s amended and restated by-laws, as they may be amended from time to time. The terms of BorgWarner’s restated certificate of incorporation and BorgWarner’s amended and restated by-laws are in some respects materially different than the terms of the Company’s articles of association, which currently govern the rights of the Company’s shareholders. See “Description of BorgWarner Capital Stock” and “Comparison of the Rights of BorgWarner Stockholders and Delphi Technologies Shareholders” beginning on pages 149 and 153, respectively, of this proxy statement for a discussion of the different rights associated with Company shares and BorgWarner shares.

 

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While the transaction is pending, the Company may be subject to business uncertainties related to its relationships with its current and future employees, customers and suppliers, which may adversely affect the Company’s business, financial condition and results of operations.

Uncertainty about the effect of the transaction on the Company’s current, and potentially future, employees, customers and suppliers may have an adverse effect on the Company’s business, financial condition and results of operation. Such uncertainties may impair the Company’s ability to attract, retain and motivate key personnel until the transaction is consummated and for a period of time thereafter, and could cause customers, suppliers and others who deal with the Company to seek to change or terminate existing business relationships with the Company. Employee retention may be particularly challenging during the pendency of the transaction because employees may experience uncertainty about their future roles with BorgWarner following completion of the transaction. If, despite the Company’s retention efforts, key employees depart because of issues relating to the uncertainty and difficulty of integration with BorgWarner or a desire not to remain with BorgWarner following completion of the transaction, the Company’s business, financial condition and results of operation could be adversely affected.

While the transaction is pending, the Company may be subject to contractual restrictions, which could adversely affect the Company’s business, financial condition and results of operations.

Under the terms of the transaction agreement, the Company is subject to certain restrictions on the conduct of its business prior to completing the transaction, which may adversely affect its ability to execute certain of its business strategies, including the ability in certain cases to enter into contracts or incur capital expenditures to grow its business. Such limitations could negatively affect the Company’s businesses, financial condition and results of operations prior to the completion of the transaction. Furthermore, the process of planning to integrate two businesses and organizations for the post-transaction period can divert management attention and resources and could ultimately have an adverse effect on the Company.

Certain directors and executive officers of the Company have interests in the transaction that are different from, or in addition to, those of other Company shareholders, which could have influenced their decisions to support or approve the transaction.

In considering whether to approve the proposals at the extraordinary general meeting, the Company shareholders should recognize that certain directors and executive officers of the Company have interests in the transaction that differ from, or that are in addition to, their interests as shareholders of the Company. These interests include, among others, current and future ownership interests in BorgWarner, potential severance benefits and other payments, the treatment of outstanding equity awards, new employment arrangements and rights to ongoing indemnification and insurance coverage. These interests, among others, may influence the directors and executive officers of the Company to support or approve the transaction. See “The Transaction—Interests of Certain Persons in the Transaction” beginning on page 87 for more information.

The business operations and financial results of the Company and BorgWarner while the transaction is pending, and the business operations and financial results of BorgWarner following the completion of the transaction, may be adversely affected by risks related to health epidemics, pandemics and other outbreaks, including COVID-19, generally referred to as the coronavirus.

The Company, BorgWarner and their respective subsidiaries and affiliates depend on international customers and suppliers and maintain manufacturing, assembly, and technical locations across the world. As a result, the Company and BorgWarner face risks inherent in international operations, such as public health issues (including viral outbreaks such as the COVID-19 coronavirus), which may lead to increased costs or decreased revenue growth, or both.

 

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For example, in December 2019, a novel strain of coronavirus causing a disease known as COVID-19 was reported to have surfaced in Wuhan, China, resulting in significant disruptions among Chinese manufacturing and other facilities and travel throughout China. As of the date of this proxy statement, cases have been reported in more than 212 countries and territories throughout the world and the virus is continuing to spread globally. The impacts of major health concerns, such as COVID-19, could adversely affect the Company’s business and BorgWarner’s business while the transaction is pending, and BorgWarner’s business after completion of the transaction. Specifically, there is a risk to global production which may include, among other things, disrupting customer order patterns, reducing demand for products and services, disrupting the manufacturing, production and shipping capabilities of certain facilities, and disrupting the manufacturing, production and shipping capabilities of suppliers, which could result in increased costs and a reduction in revenues, or both.

As a result of market conditions and matters associated with COVID-19, many OEM customers have suspended manufacturing operations. The temporary suspensions and other reductions in OEM production related to COVID-19 have led each of the Company and BorgWarner to temporarily suspend operations at certain of its manufacturing and assembly facilities. While the Company and BorgWarner cannot reasonably estimate the extent of the impact of the current COVID-19 pandemic on the results of operations of the Company or of BorgWarner due to the heightened level of uncertainty, the Company and BorgWarner expect the situation to have a material impact on 2020 financial performance. A continued and prolonged public health crisis could have a material negative impact on the businesses, financial conditions and operating results of the Company and BorgWarner while the transaction is pending, and BorgWarner’s business, financial condition and operating results after the completion of the transaction.

Risks Relating to BorgWarner Following the Transaction

If completed, the transaction may not achieve its intended results.

BorgWarner and the Company entered into the transaction agreement with the expectation that the transaction will result in various benefits following completion of the transaction, including among other things, improved profitability through various revenue and cost synergies, a more comprehensive portfolio of leading products, a diversified growth profile and broad geographic reach, a stronger balance sheet and quality credit ratings as compared with the Company on a standalone basis and a leading pioneering propulsion technologies company with enhanced scale and capabilities that will enable it to better withstand industry challenges and macroeconomic headwinds. For additional reasons considered by the Board, see “The Transaction—Recommendation of the Board and Reasons for the Transaction” beginning on page 67. Achieving these anticipated benefits of the transaction is subject to a number of uncertainties, including, among other things, whether the businesses of BorgWarner and the Company can be integrated in an efficient and effective manner and on a timely basis, the successful execution of the Company’s restructuring plan, economic and business conditions that affect BorgWarner and the automotive industry generally, and any material changes in global, political, economic, business, competitive, market or regulatory forces. Failure to achieve the anticipated benefits of the transaction could result in increased costs and lower synergies, result in a decrease in expected revenues, reduce BorgWarner’s future earnings or otherwise adversely affect BorgWarner’s future business, financial condition, operating results or cash flows following completion of the transaction. For additional risks and factors, see “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 41.

BorgWarner and the Company may be unable to successfully integrate their operations. Failure to successfully integrate the businesses of BorgWarner and the Company in the expected timeframe may adversely affect the future results of BorgWarner, and, consequently, the value of the BorgWarner shares that Company shareholders receive as the scheme consideration.

It is possible that the integration process could be unsuccessful or take longer than anticipated and could result in the loss of valuable employees, the disruption of each company’s ongoing businesses, processes and systems or inconsistencies in standards, controls, procedures, practices, policies and compensation arrangements, any of

 

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which could adversely affect BorgWarner’s ability to achieve the anticipated benefits of the transaction. BorgWarner’s results of operations could also be adversely affected by any issues attributable to either company’s operations that arise or are based on events or actions that occur prior to the completion of the transaction. The companies may have difficulty addressing possible differences in corporate cultures and management philosophies. The integration process is subject to a number of uncertainties, and no assurance can be given that the anticipated benefits will be realized or, if realized, the timing of their realization. Failure to successfully integrate the Company’s operations with BorgWarner’s operations following the completion of the transaction could adversely affect BorgWarner’s ability to maintain relationships with customers, suppliers, employees and other constituencies or achieve the anticipated benefits of the transaction, or could reduce BorgWarner’s earnings or otherwise adversely affect the business and financial results of BorgWarner.

BorgWarner and the Company will incur substantial transaction fees and costs in connection with the transaction.

BorgWarner and the Company expect to incur a number of non-recurring, substantial transaction-related costs associated with completing the transaction, combining the operations of the two organizations and achieving desired synergies. These fees and costs will be substantial. Non-recurring transaction costs include, but are not limited to, fees paid to legal, financial and accounting advisors, retention, severance, change in control and other integration-related costs, filing fees and printing costs. Additional unanticipated costs may be incurred in the integration of the businesses of BorgWarner and the Company. There can be no assurance that the elimination of certain duplicative costs, as well as the realization of other efficiencies related to the integration of the two businesses, will offset the incremental transaction-related costs over time. Thus, any net benefit may not be achieved in the near term, the long term or at all.

The unaudited pro forma combined financial statements and the unaudited prospective financial information prepared by Company management included in this proxy statement are based on various assumptions that may not prove to be correct, and they are presented for illustrative purposes only and may not be an indication of BorgWarner’s financial condition or results of operations following the transaction, which may differ materially.

The unaudited pro forma combined financial information included in this proxy statement is presented for illustrative purposes only and is not necessarily indicative of what BorgWarner’s actual results of operations, cash flows and financial position would have been had the transaction been completed on the dates indicated. The unaudited pro forma combined financial information reflects adjustments, which are based upon preliminary estimates, to record Company identifiable assets to be acquired and liabilities to be assumed at fair value, and the resulting goodwill to be recognized. The purchase price allocation reflected is preliminary, and final allocation of the purchase price will be based upon the actual purchase price and the fair value of the assets acquired and liabilities assumed in the transaction. Accordingly, the final acquisition accounting adjustments may differ materially from the pro forma adjustments reflected in this proxy statement. The unaudited pro forma combined financial information is also based on a number of other estimates and assumptions, including with respect to the type and terms of debt to be incurred to refinance certain outstanding indebtedness of the Company and its subsidiaries on the closing date, cash consideration paid in lieu of fractional shares and fees and expenses related to the transaction and the refinancing. If the type or terms of the new debt actually incurred differ materially from the estimates and assumptions set out in the accompanying unaudited pro forma combined financial information, BorgWarner’s actual results and financial condition after the completion of the transaction could differ materially and adversely from the results and financial condition contemplated by the unaudited pro forma combined financial information. For more information, see “Unaudited Pro Forma Combined Financial Information” beginning on page 128.

The unaudited prospective financial information prepared by Company management in this proxy statement was prepared for the Company’s internal purposes only and is presented in this proxy statement solely to give Company shareholders access to the information that was made available to BorgWarner, the Board and their

 

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respective financial advisors at the time such prospective financial information was prepared. The unaudited prospective financial information is based on numerous variables and assumptions that are inherently uncertain and are beyond the control of the Company’s management team and is not necessarily indicative of what the Company’s actual results of operations, cash flows or financial position would be on the dates indicated. The assumptions used in preparing these projections may not prove to be accurate, and other factors may affect the Company’s and BorgWarner’s actual results and financial condition (including after the completion of the transaction) to differ materially and adversely from the estimates contained in the unaudited prospective financial information prepared by Company management. Many factors mentioned in this proxy statement, including the risks outlined in this “Risk Factors” section and the events or circumstances described under “Cautionary Statement Regarding Forward-Looking Statements,” will be important in determining BorgWarner’s future results following the completion of the transaction. In view of these uncertainties, the inclusion of the Company Projections in this proxy statement is not and should not be viewed as a representation that the projected results will necessarily reflect the actual future results. For more information, see “The Transaction—Delphi Technologies Unaudited Prospective Financial Information” beginning on page 84.

The indebtedness of BorgWarner and its subsidiaries following completion of the transaction will be substantially greater than BorgWarner’s indebtedness prior to completion of the transaction. This increased level of indebtedness could adversely affect BorgWarner following the transaction, including by decreasing BorgWarner’s business flexibility and increasing its interest expense.

Following the transaction, BorgWarner will have a substantial amount of debt. As of May 21, 2020, BorgWarner had total outstanding indebtedness of approximately $1.977 billion and the Company had total outstanding indebtedness of approximately $1.984 billion. In connection with the transaction, BorgWarner expects to incur acquisition-related debt financing of approximately $0.820 billion, all of which is expected to be used to refinance certain outstanding indebtedness of the Company and its subsidiaries on the closing date, refinance certain indebtedness of BorgWarner, make cash payments in lieu of fractional shares as part of the scheme consideration and pay fees and expenses related to the transaction and the refinancing. Accordingly, the indebtedness of BorgWarner and its subsidiaries following completion of the transaction will be substantially greater than BorgWarner’s indebtedness prior to completion of the transaction. Such increase in indebtedness following completion of the transaction could have the effect of, among other things, reducing BorgWarner’s flexibility to respond to changing business and economic conditions. In addition, the amount of cash required to pay interest on BorgWarner’s increased indebtedness levels will increase following completion of the transaction, and thus the demands on BorgWarner’s cash resources will be greater than the amount of cash flows required to service the indebtedness of BorgWarner prior to the transaction.

BorgWarner’s credit ratings impact the cost and availability of future borrowings and, accordingly, BorgWarner’s cost of capital. BorgWarner’s ratings reflect each rating organization’s opinion of BorgWarner’s financial strength, operating performance and ability to meet its debt obligations. In connection with the acquisition related debt financing, it is anticipated that BorgWarner will seek ratings of its indebtedness from Moody’s Investors Service, Inc., S&P Global Ratings and Fitch Ratings. There can be no assurance that BorgWarner will achieve a particular rating or maintain a particular rating in the future or that BorgWarner’s ratings will not be adversely affected by the factors described above. A downgrade in the ratings of BorgWarner’s debt could restrict its ability to access the debt capital markets. Changes in the ratings that rating agencies assign to BorgWarner debt may ultimately impact BorgWarner’s access to the debt capital markets and costs it incurs to borrow funds. If ratings for BorgWarner’s debt fall below investment grade, its access to the debt capital markets could become restricted and its cost of borrowing or the interest rate for any subsequently issued debt would likely increase. BorgWarner’s revolving credit agreement includes an increase in interest rates if the ratings for its debt are downgraded. The interest costs on its revolving credit agreement are based on a rating grid agreed to in its credit agreement. Further, an increase in the level of indebtedness and related interest costs may increase BorgWarner’s vulnerability to adverse general economic and industry conditions and may affect its ability to obtain additional financing in the future. In addition,

the increased levels of indebtedness following completion of the transaction could also reduce funds available to fund BorgWarner’s efforts to integrate the Company’s operations, realize the expected benefits of the transaction

 

33

and engage in investments in product development as well as funds generally available for working capital, capital expenditures, acquisitions and other general corporate purposes.

The market price of BorgWarner shares following completion of the transaction may be affected by factors different from those affecting BorgWarner shares or Company shares prior to completion of the transaction.

The results of operations of BorgWarner and the market price of the BorgWarner shares, after completion of the transaction, may be affected by factors different from those that previously affected the independent results of operations and the market prices of the Company shares and the BorgWarner shares. Accordingly, the market price and performance of BorgWarner shares is likely to be different from the performance of the Company shares in the absence of the transaction. In addition, general fluctuations in stock markets or adverse factors in the automotive industry could have a material adverse effect on the market for, or liquidity of, BorgWarner shares, regardless of BorgWarner’s actual operating performance following the completion of the transaction. In addition, the transaction may be dilutive to BorgWarner’s earnings in the short-term following completion of the transaction.

Uncertainties associated with the transaction may cause a loss of management personnel and other key employees which could adversely affect the future business and operations of BorgWarner following the transaction.

Following completion of the transaction, BorgWarner will be dependent on the experience and industry knowledge of BorgWarner’s and the Company’s officers and other key employees to execute its business plans. BorgWarner’s success after the transaction will depend to some extent upon its ability to retain key management personnel and other key employees. As BorgWarner develops additional capabilities, it may require more skilled employees. Given the highly specialized nature of BorgWarner’s and the Company’s products, these employees must be highly skilled and have a sound understanding of BorgWarner’s industry, business or technology. BorgWarner’s and the Company’s current and prospective employees may experience uncertainty about their roles within BorgWarner following the transaction or other concerns regarding its operations following the transaction, any of which may have an adverse effect on BorgWarner’s ability to attract or retain key management and other key personnel. Accordingly, no assurance can be given that the Company and BorgWarner will be able to attract or retain key management personnel and other key employees until the transaction is consummated or following the transaction to the same extent that the Company and BorgWarner have previously been able to attract or retain such employees.

Certain Company agreements may contain change of control provisions that may be triggered by the transaction and, if not waived, could cause BorgWarner to lose the benefit of such agreements and incur liabilities and/or replacement costs following the completion of the transaction, which could have an adverse effect on BorgWarner.

The Company is party to, or may become party to after the date hereof, various agreements with third parties, including, among other agreements, certain customer agreements, license agreements, collaboration agreements, business development-related agreements, manufacturing, supply and distribution related agreements, financing facilities, hedging arrangements, contracts for the performance of services material to the operations of the Company and/or its affiliates and employment agreements that may contain change of control provisions that may be triggered upon the completion of the transaction. For more information regarding such employee agreements, see “The Transaction—Interests of Certain Persons in the Transaction—Golden Parachute Compensation” beginning on page 87. In the event that there is such a contract or arrangement requiring a consent or waiver in relation to the transaction, for which such consent or waiver was not obtained, BorgWarner could lose the benefit of the underlying agreement and incur liabilities, replacement or severance costs following the transaction, which could have an adverse effect on the operations of BorgWarner.

 

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If BorgWarner or the Company is unable to protect its intellectual property or if a third party makes assertions against BorgWarner or the Company or their customers relating to intellectual property rights, the business of BorgWarner could be adversely affected.

Intellectual property plays an important role in maintaining each of BorgWarner’s and the Company’s competitive position in a number of the markets that each company serves. BorgWarner and the Company each own significant intellectual property portfolios, which include patents, trademarks, copyrights and trade secrets, and each is involved in numerous licensing arrangements. BorgWarner’s and the Company’s competitors may develop technologies that are similar or superior to BorgWarner’s or the Company’s proprietary technologies or such competitors may design around the patents BorgWarner will own or license following the transaction. Further, as BorgWarner expands its operations following the transaction in or into jurisdictions where the enforcement of intellectual property rights is less stringent than in the U.S., the risk of others, following the transaction, misappropriating BorgWarner’s or the Company’s proprietary technologies increases, despite efforts BorgWarner may undertake to protect its intellectual property rights. BorgWarner’s or the Company’s inability to protect or enforce its intellectual property rights or claims by third parties that it is infringing intellectual property rights of others could adversely affect BorgWarner’s business and competitive position.

 

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SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF BORGWARNER

The following table presents selected historical consolidated financial data of BorgWarner. The selected historical consolidated financial data as of December 31, 2019 and 2018, and for the years ended December 31, 2019, 2018 and 2017, have been derived from BorgWarner’s audited consolidated financial statements and accompanying notes contained in BorgWarner’s Annual Report on Form 10-K for the year ended December 31, 2019, which is incorporated by reference herein. The selected historical consolidated financial data as of December 31, 2017, 2016 and 2015, and for the years ended December 31, 2016 and 2015, have been derived from BorgWarner’s audited consolidated financial statements for such years and accompanying notes, which are not incorporated by reference herein. The selected historical consolidated financial data as of March 31, 2020 and for the quarterly period ended March 31, 2020 and March 31, 2019, have been derived from BorgWarner’s unaudited condensed consolidated financial statements and accompanying notes contained in BorgWarner’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, which is incorporated by reference herein. The selected historical consolidated financial data as of March 31, 2019 have been derived from BorgWarner’s unaudited condensed consolidated financial statements and accompanying notes contained in BorgWarner’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2019, which is not incorporated by reference herein. In the opinion of BorgWarner’s management, all normal recurring adjustments necessary for a fair statement of results have been included.

The information set forth below is only a summary. You should read the following information together with BorgWarner’s consolidated financial statements and accompanying notes and the sections entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” contained in BorgWarner’s Annual Report on Form 10-K for the year ended December 31, 2019 and Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, which are incorporated by reference herein, and in BorgWarner’s other reports filed with the SEC. BorgWarner’s historical consolidated financial information may not be indicative of the future performance of BorgWarner following completion of the transaction. For details on how you may obtain additional information, see “Where You Can Find More Information” beginning on page 184.

 

		As of and for the quarters ended March 31,								As of and for the years ended December 31,
		2020				2019				2019				2018				2017				2016				2015
		(in millions, except per share data)
Statement of operations data
Net sales		$	2,279			$	2,566			$	10,168			$	10,530			$	9,799			$	9,071			$	8,023
Net earnings attributable to BorgWarner Inc.		$	129			$	160			$	746			$	931			$	440			$	595			$	577
Earnings per share—diluted		$	0.63			$	0.77			$	3.61			$	4.44			$	2.08			$	2.76			$	2.56
Weighted average shares outstanding:
Diluted			206.2				207.1				206.8				209.5				211.5				215.3				225.6
Balance sheet data
Total assets		$	9,502			$	10,104			$	9,702			$	10,095			$	9,788			$	8,835			$	9,211
Total debt		$	1,950			$	2,087			$	1,960			$	2,114			$	2,188			$	2,220			$	2,550

 

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SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF DELPHI TECHNOLOGIES

The following table presents selected historical consolidated financial data of Delphi Technologies. The selected historical consolidated financial data as of December 31, 2019 and 2018 and for the years ended December 31, 2019, 2018 and 2017, have been derived from Delphi Technologies’ audited consolidated financial statements and accompanying notes contained in Delphi Technologies’ Annual Report on Form 10-K for the year ended December 31, 2019, which is incorporated by reference herein. The selected historical consolidated financial data as of March 31, 2020 and for the quarterly period ended March 31, 2020 and March 31, 2019, have been derived from Delphi Technologies’ unaudited consolidated financial statements and accompanying notes contained in Delphi Technologies’ Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, which is incorporated by reference herein. The selected historical consolidated financial data as of March 31, 2019 have been derived from Delphi Technologies’ unaudited consolidated financial statements and accompanying notes contained in Delphi Technologies’ Quarterly Report on Form 10-Q for the quarter ended March 31, 2019, which is not incorporated by reference herein. The selected historical consolidated financial data as of December 31, 2017, 2016 and 2015, and for the years ended December 31, 2016 and 2015, have been derived from Delphi Technologies’ audited consolidated financial statements for such years and accompanying notes, which are not incorporated by reference herein. Prior to the Company’s spin-off on December 4, 2017, the historical financial statements of Delphi Technologies were prepared on a standalone combined basis and were derived from the former parent entity’s consolidated financial statements and accounting records as if the former Powertrain Systems segment of Delphi Technologies, which historically included the aftermarket business, of the former parent had been part of Delphi Technologies for all periods presented. In the opinion of Delphi Technologies’ management, all normal recurring adjustments necessary for a fair statement of results have been included.

The Company’s historical financial statements for periods prior to December 4, 2017, reflect an allocation of expenses related to certain corporate functions of the former parent, including senior management, legal, human resources, finance and accounting, treasury, information technology services and support, cash management, payroll processing, certain pension and benefit administration and other shared services. These costs were allocated using methodologies that management believes were reasonable for the item being allocated. Allocation methodologies included direct usage when identifiable, as well as the Company’s relative share of revenues, headcount or functional spend as a percentage of the total. However, the allocations are not indicative of the actual expenses that would have been incurred had Delphi Technologies operated as a standalone publicly-traded company for the periods presented. Accordingly, the historical financial information presented for periods prior to December 4, 2017, may not be indicative of the results of operations, financial position or cash flows that would have been achieved if Delphi Technologies had been a standalone publicly-traded company during the periods shown or of Delphi Technologies’ performance for periods subsequent to December 4, 2017.

The information set forth below is only a summary. You should read the following information together with Delphi Technologies’ consolidated financial statements and accompanying notes and the sections entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” contained in Delphi Technologies’ Annual Report on Form 10-K for the year ended December 31, 2019 and Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, which are incorporated by reference herein, and in Delphi Technologies’ other reports filed with the SEC. Delphi Technologies’ historical consolidated financial information may not be indicative of the future performance of Delphi Technologies following completion of the transaction. For details on how you may obtain additional information, see “Where You Can Find More Information” beginning on page 184.

 

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		As of and for the quarters ended March 31,								As of and for the years ended December 31,
		2020				2019				2019				2018				2017				2016				2015
		(dollars and shares in millions, except per share data)
Statement of operations data
Net sales		$	945			$	1,151			$	4,361			$	4,858			$	4,849			$	4,486			$	4,407
Net income (loss) attributable to Delphi Technologies		$	(57	)		$	16			$	17			$	358			$	285			$	236			$	272
Diluted net income (loss) per share(1)		$	(0.66	)		$	0.18			$	0.19			$	4.03			$	3.21			$	2.66			$	3.07
Weighted average ordinary shares outstanding:
Diluted			86.28				88.55				87.42				88.89				88.66				88.61				88.61
Balance sheet data
Total assets		$	4,064			$	3,957			$	3,747			$	3,893			$	3,793			$	2,899			$	3,001
Long-term debt and finance lease obligations		$	1,935			$	1,479			$	1,455			$	1,488			$	1,515			$	6			$	9

 

(1)	Net income per share for 2016 and 2015 were calculated using the number of Company shares that were distributed to shareholders of former parent upon Delphi Technologies’ spin-off (88,613,262 shares).

 

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SUMMARY UNAUDITED PRO FORMA COMBINED FINANCIAL DATA

The following tables present unaudited pro forma combined financial information about BorgWarner’s consolidated balance sheet and statements of operations after giving effect to the transaction. The information under “Unaudited Pro Forma Combined Balance Sheet Data” in the table below gives effect to the transaction as if it had taken place on March 31, 2020, and the information under “Unaudited Pro Forma Combined Statements of Operations Data” in the table below gives effect to the transaction as if it had taken place on January 1, 2019. This selected unaudited pro forma combined financial information was prepared using the acquisition method of accounting where BorgWarner is considered the acquirer of Delphi Technologies for accounting purposes. For more information, see “The Transaction—Accounting Treatment of the Transaction” beginning on page 97.

This selected unaudited pro forma combined financial information includes various adjustments which are described in the pro forma combined financial statements of BorgWarner (including the related notes) appearing elsewhere in this proxy statement. The pro forma adjustments reflected in the selected unaudited pro forma combined financial information set forth below are preliminary and are subject to change as additional information becomes available and as additional analysis is performed. The preliminary pro forma adjustments have been made solely for the purpose of providing this unaudited pro forma combined financial information.

This selected unaudited pro forma combined financial information has been prepared for illustrative purposes only and is based on currently available information and assumptions and estimates considered appropriate by BorgWarner’s and the Company’s management; however, it is not necessarily indicative of what BorgWarner’s consolidated financial condition or results of operations actually would have been assuming the transaction had been completed as of the dates indicated, nor does it purport to represent BorgWarner’s consolidated balance sheet and statement of operations for future periods. Future results may vary significantly from the results reflected due to various factors, including those discussed in “Risk Factors” beginning on page 26 and “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 41. The information presented below should be read in conjunction with the historical consolidated financial statements of BorgWarner and Delphi Technologies (including the related notes) filed by each of them with the SEC, in addition to the pro forma combined financial statements of BorgWarner (including the related notes). See the sections entitled “Where You Can Find More Information” and “Unaudited Pro Forma Combined Financial Information” beginning on pages 184 and 128, respectively, of this proxy statement.

BorgWarner Inc.

Unaudited Pro Forma Combined Balance Sheet

As of March 31, 2020

(in millions)

 

(in millions)		Pro Forma Combined
Total assets		$	13,880
Total liabilities		$	7,826
Total equity		$	6,054

 

39

BorgWarner Inc.

Unaudited Pro Forma Combined Statements of Operations

Three Months Ended March 31, 2020 and Year Ended December 31, 2019

(in millions)

 

		Pro Forma Combined
		Three months ended March 31, 2020				Year ended December 31, 2019
Net sales		$	3,224			$	14,525
Net earnings attributable to BorgWarner Inc.		$	98			$	745
Earnings per share—basic		$	0.40			$	3.07
Earnings per share—diluted		$	0.40			$	3.05
Weighted average shares outstanding:
Basic			242.86				242.86
Diluted			243.71				244.26

 

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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

This proxy statement and the documents incorporated into it by reference contain forward-looking statements made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995 concerning BorgWarner, the Company, and the transactions contemplated by the transaction agreement that involve risks and uncertainties. All statements, trend analyses and other information contained herein about the markets for the services and products of BorgWarner and the Company and future trends, plans, projections, objectives, events, results of operations or financial conditions, information or assumptions about the timing of completion of the proposed transaction, scale and performance, integration plans and expected cost savings therefrom, as well as other statements identified by the use of forward-looking terminology, including “anticipate,” “believe,” “plan,” “could,” “estimate,” “expect,” “goal,” “forecast,” “guidance,” “predict,” “project,” “intend,” “may,” “will,” “would,” “should,” “continue,” “pursue,” “possible,” “potential,” “objective,” “outlook” or the negative of these terms or other similar words, phrases or expressions, constitute forward-looking statements. In particular, statements, express or implied, concerning future actions, conditions or events, future operating results, the ability to generate sales, income or cash flow, to realize cost savings or other benefits associated with the transaction or to pay dividends or repurchase shares are forward-looking statements. These forward-looking statements are not historical facts but instead represent only BorgWarner’s and the Company’s expectations, estimates and projections regarding future events, based on current beliefs of management, as well as assumptions made by, and information currently available to, management. These statements are not guarantees of future performance and involve certain risks, contingencies and uncertainties that are difficult to predict, many of which are outside the control of BorgWarner and the Company, which may include the risk factors set forth above and other market, business, legal and operational uncertainties discussed elsewhere in this proxy statement and the documents which are incorporated herein by reference. Factors that could cause actual results to differ materially from these forward-looking statements, result in the failure of the transaction to be completed or, if completed, have a material adverse effect on the results of operations, cash flows and financial position of BorgWarner following the transaction, and any anticipated benefits of the transaction to BorgWarner following the transaction, include, but are not limited to, the following:

 

•

the inherent uncertainty associated with financial projections;

 

•

failure to satisfy one or more closing conditions with respect to the transaction;

 

•

the occurrence of any event, change or other circumstances that could give rise to the termination of the transaction agreement;

 

•

the inability to complete the transaction on a timely basis or at all;

 

•

the risk that the required regulatory approvals for the acquisition are not obtained, are delayed or are subject to conditions that are not anticipated;

 

•

product liability claims and concerns that may arise regarding the safety and efficacy of in-line products and product candidates;

 

•

the risk that the Company’s and BorgWarner’s businesses will not be integrated successfully or that the estimated cost savings, synergies and benefits of the transaction will not be realized in time or at all;

 

•

access to available financing (including refinancing of BorgWarner or the Company debt) on a timely basis and on reasonable terms;

 

•

the combined company’s ability to maintain BorgWarner’s current credit ratings;

 

•

expectations regarding cash flow generation, accretion to cash earnings per share, capital structure and debt repayment following the closing of the transaction;

 

•

the timing and amount of any dividends or share repurchases;

 

•

unanticipated changes in the markets for BorgWarner’s and the Company’s business segments;

 

•

the anticipated size of the markets and continued demand for BorgWarner’s and the Company’s products;

 

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•

unanticipated downturns in business relationships with customers or their purchases from BorgWarner or the Company;

 

•

the scope and duration of the COVID-19 pandemic and actions taken by governmental authorities in response thereto;

 

•

the significant and unprecedented market disruption caused by the COVID-19 pandemic and its impact on the businesses, operations and financial conditions of BorgWarner and the Company;

 

•

the ability to execute and realize the expected benefits from strategic initiatives, as well as revenue growth plans and cost control and productivity improvement programs;

 

•

the possibility that other strategic opportunities will not be pursued;

 

•

the risks and uncertainties of industry competition and competitive pressures on BorgWarner’s and the Company’s sales and pricing;

 

•

reduction, interruption, difficulties, delays with, or increase in the cost of, material, supply, manufacturing, and energy;

 

•

unexpected costs that cannot be recouped in product pricing;

 

•

the availability and pricing of third-party sourced products and materials;

 

•

the magnitude of any disruptions from manufacturing rationalizations;

 

•

the timing and ability to develop and introduce new products;

 

•

changes in the mix of products sold;

 

•

variability of trade buying patterns;

 

•

the introduction of competing technologies and products;

 

•

unexpected technical or marketing difficulties;

 

•

unexpected claims, charges, litigation or dispute resolutions;

 

•

the difficulty of predicting the timing or outcome of pending or future litigation or government investigations;

 

•

costs and efforts to defend or enforce intellectual property rights;

 

•

product quality problems and changes in research and development spend;

 

•

political developments;

 

•

changing legislation and governmental regulations;

 

•

changes in capital markets conditions (including currency exchange rate fluctuations), inflation and interest rates;

 

•

the loss of key senior management or engineers;

 

•

risks associated with international operations;

 

•

compliance with governmental regulations applicable to BorgWarner’s and the Company’s facilities, products and/or businesses;

 

•

negative effects relating to the announcement of the proposed transaction, any further announcements relating to the proposed transaction, the consummation of the proposed transaction, or the failure to complete the proposed transaction on the market price of the Company shares or BorgWarner shares;

 

•

significant transaction costs and/or unknown or inestimable liabilities;

 

42

•

the uncertainty of the value of the scheme consideration due to the fixed exchange ratio and potential fluctuation in the market price of BorgWarner shares;

 

•

potential litigation associated with the transaction;

 

•

general political, economic and business conditions that affect the combined company following the consummation of the transaction;

 

•

natural disasters, war, terrorist activities, epidemics or pandemics, including the recent coronavirus outbreak;

 

•

changes in tax laws, regulations, rates and policies; and

 

•

the timing and occurrence (or non-occurrence) of other events or circumstances that may be beyond the Company’s control.

The above list of factors is not exhaustive and you are cautioned not to place undue reliance on these forward-looking statements. You should carefully consider the factors and the other risks and uncertainties that affect BorgWarner’s and the Company’s businesses described herein and the information under the captions “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” found in the Company’s most recent Annual Report on Form 10-K filed with the SEC on February 13, 2020 and Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 filed with the SEC on May 7, 2020, and the information under the captions “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” found in BorgWarner’s most recent Annual Report on Form 10-K filed with the SEC on February 13, 2020 and Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 filed with the SEC on May 6, 2020. These forward-looking statements speak only as of the date of this proxy statement as to the forward-looking statements contained in this proxy statement and as of the dates of the filings of the Annual Report on Form 10-K and the Quarterly Report on Form 10-Q as to the forward-looking statements contained in the respective Annual Report on Form 10-K and Quarterly Report on Form 10-Q of each company and any document incorporated by reference herein as to any forward-looking statement incorporated by reference herein. Except as provided by federal securities laws, neither the Company nor BorgWarner is required to, and the Company and BorgWarner undertake no obligation to, publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise. All subsequent written or oral forward-looking statements attributable to the Company or BorgWarner or any person acting on its or their behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section.

 

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PART 1—THE TRANSACTION AND THE SPECIAL MEETINGS

THE SPECIAL MEETINGS OF COMPANY SHAREHOLDERS

Overview

This proxy statement is being provided to Company shareholders as part of a solicitation of proxies by the Board (excluding Messrs. Manganello and Adams who have recused themselves due to their respective ownership of BorgWarner shares) for use at the special meetings of Company shareholders referred to below and at any adjournment or postponement of such meetings. This proxy statement is being furnished to Company shareholders on or about May 26, 2020. This proxy statement provides Company shareholders with information they need to be able to vote or instruct their vote to be cast at the special meetings.

Time, Place, Date and Purpose of the Special Meetings

Court Meeting

The Court Meeting, which will be held via live webcast, has been convened for June 25, 2020 at 9:00 a.m. (Eastern time). At the Court Meeting, the Company shareholders will be asked to vote to approve the Scheme Proposal.

Extraordinary General Meeting

Delphi Technologies has also convened an extraordinary general meeting of shareholders to be held via live webcast on June 25, 2020 at 9:15 a.m. (Eastern time), or, if the Court Meeting has not concluded by 9:15 a.m. (Eastern time), as soon as possible after the conclusion of the Court Meeting. At the extraordinary general meeting, the Company shareholders will be asked to vote to approve the Scheme and Articles Amendment Proposal and the Compensation Proposal.

There will not be a physical meeting location. The special meetings can be attended by visiting www.meetingcenter.io/243532838 and following the instructions on the website for the live webcast, where you will be able to participate in the special meetings live and vote online.

Attendance

Attendance at the Court Meeting and the extraordinary general meeting via live webcast is limited to Company shareholders of record as of the Voting Record Time. Shareholders of record are entitled to vote at the Court Meeting and the extraordinary general meeting by following the instruction on the website for the live webcast or they may appoint another person or persons, whether a shareholder of Delphi Technologies or not, as their proxy or proxies, to exercise all or any of their rights to attend, speak and vote at the Court Meeting and the extraordinary general meeting.

Company shareholders who beneficially own Company shares for which Cede & Co. is the registered holder (as nominee for The Depository Trust Company) and whose interests in Company shares are held in “street name” by a broker, bank, trust or other nominee as of the Beneficial Holder Record Time (the close of business (Eastern time) on May 1, 2020) will be entitled to direct his, her or its broker, bank, trust or other nominee how to vote such beneficially held shares at the Court Meeting and the extraordinary general meeting. Only a broker, bank, trust or other nominee of a beneficial holder can vote such beneficially held shares and the vote cannot be cast unless such beneficial holder provides instructions to such broker, bank, trust or other nominee, or obtains a legal proxy from such broker, bank, trust or other nominee, which entitles such beneficial holder to vote such shares as a proxy for the shareholder of record. To register to attend the special meetings via live webcast and vote during

 

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the meeting, beneficial holders must submit such request, along with proof of the legal proxy, the beneficial holder’s name and email address to Computershare. Requests for registration should be directed to:

Computershare, attention: Delphi Technologies Legal Proxy, P.O. Box 43001, Providence, RI 02940-3001. Beneficial holders may also forward an email from their broker, bank, trust or other nominee of their legal proxy, or attach an image of their legal proxy, to legalproxy@computershare.com. Requests for registration must be received no later than 5:00 p.m. (Eastern time) on June 18, 2020 in order to ensure timely registration. Beneficial holders will receive a registration confirmation by email after Computershare receives the above requested information.

Proposals

Court Meeting: Company shareholders entitled to vote at the Court Meeting are being asked to consider the following proposal to approve the scheme of arrangement:

 

1.	Resolution: To approve the scheme in its original form or with or subject to any modification(s), addition(s) or condition(s) approved or imposed by the Royal Court of Jersey.

Extraordinary General Meeting: Company shareholders entitled to vote at the extraordinary general meeting are also being asked to consider and authorize and approve, as applicable, the following related proposal to effect the scheme of arrangement and a non-binding, advisory proposal:

 

1.

Resolution #1: To authorize the directors of Delphi Technologies to take all such actions as they consider necessary or appropriate for carrying the scheme of arrangement into effect and to amend the articles of association of Delphi Technologies so that any Company shares that are issued on or after the Voting Record Time (as defined in the scheme of arrangement) to persons other than BorgWarner or its nominees will either be subject to the terms of the scheme or immediately and automatically acquired by BorgWarner and/or its nominee(s) for the scheme consideration.

 

2.

Resolution #2: To approve, on a non-binding, advisory basis, the golden parachute compensation, as disclosed pursuant to Item 402(t) of Regulation S-K in the Golden Parachute Compensation Table and the footnotes to that table contained in the section of this proxy statement captioned “The Transaction—Interests of Certain Persons in the Transaction” beginning on page 87.

Record Date; Outstanding Company Shares; Company Shares Entitled to Vote

Only beneficial holders of Company shares as of the Beneficial Holder Record Time will be entitled to receive notice of and to direct their brokers, banks, trusts or other nominees how to vote such beneficially held shares at the special meetings, or any adjournment or postponement thereof. Only shareholders of record as of the Voting Record Time will be entitled to vote at the special meetings or any adjournment or postponement thereof (in person via live webcast or by proxy). As of May 21, 2020, there were 86,349,731 Company shares outstanding. Each outstanding Company share is entitled to one vote on each proposal and any other matter properly coming before the special meetings.

Quorum

Two or more Company shareholders that are present (in person via live webcast or by proxy) will constitute a quorum for the Court Meeting. One or more Company shareholders that are present (in person via live webcast or by proxy) representing a majority of the voting power of Delphi Technologies will constitute a quorum for the extraordinary general meeting. Delphi Technologies does not currently hold any Company shares in treasury (although any such shares would not be included in the calculation of the number of Company shares present at the special meetings for purposes of determining a quorum in any event). The Company’s inspector of election intends to treat as “present” for these purposes shareholders who have submitted, properly executed or if applicable, transmitted proxies with respect to the extraordinary general meeting that are marked “abstain.” The Company’s inspector of election will also treat as “present” shares held in “street name” by brokers that are voted by such brokers that have not been directed by the beneficial owners to vote on any resolution in any particular manner.

 

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Company Share Ownership and Voting by Delphi Technologies’ Directors and Officers

As of May 21, 2020, the full Board and named executive officers had the right to vote, in the aggregate, 295,320 of the then-outstanding Company shares at the special meetings (and 496,535 of the then outstanding Company shares when taking into account rights to acquire Company shares within 60 days of May 21, 2020), representing less than one percent of the Company shares then outstanding and entitled to vote at the Court Meeting and less than one percent of the Company shares then outstanding and entitled to vote at the extraordinary general meeting. Board members and named executive officers who are shareholders of Delphi Technologies intend to vote “FOR” the scheme of arrangement at the Court Meeting, “FOR” the authorization of the Board to take such actions necessary or appropriate for carrying the scheme into effect and to amend the articles of association of Delphi Technologies so that any Company shares that are issued on or after the Voting Record Time to persons other than BorgWarner (or its designees) will either be subject to the terms of the scheme or immediately and automatically acquired by BorgWarner (or its designees) for the scheme consideration, and “FOR” the non-binding, advisory proposal, approving the golden parachute compensation, as disclosed pursuant to Item 402(t) of Regulation S-K in the Golden Parachute Compensation Table and the footnotes to that table contained in the section of this proxy statement captioned “The Transaction—Interests of Certain Persons in the Transaction.”

Vote Required; Recommendation of the Board

Court Meeting

Proposal to approve the scheme of arrangement: Company shareholders are being asked to vote on a proposal to approve the scheme at the Court Meeting. As set out in full under the section entitled “Part 2—Explanatory Statement—Court Meeting and Extraordinary General Meeting” beginning on page 187, the Scheme Proposal requires the approval by (a) a majority in number of the Company shareholders of record as of the Voting Record Time that are present and voting (in person via live webcast or by proxy) at the Court Meeting (or at any adjournment or postponement of such meeting) and (b) at least 75% of the votes cast by the Company shareholders present and voting (in person via live webcast or by proxy).

The vote required to approve the Scheme Proposal at the Court Meeting is based on votes properly cast at the meeting. In accordance with Jersey law, Company shareholders will not be permitted to abstain with respect to the Scheme Proposal. Broker non-votes are not considered votes properly cast and will have no effect on such proposal.

The transaction is conditioned on approval of the scheme at the Court Meeting.

The Board recommends that Company shareholders vote “FOR” the proposal to approve the scheme of arrangement at the Court Meeting.

In considering the recommendation of the Board, you should be aware that certain directors and executive officers of Delphi Technologies have interests in the proposed transaction that are in addition to, or different from, any interests they might have as shareholders. For more information, see “The Transaction—Interests of Certain Persons in the Transaction” beginning on page 87. In particular, Messrs. Manganello and Adams are not participating in the recommendation of the Board due to their respective ownership of BorgWarner shares.

 

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Extraordinary General Meeting

Set forth below is a table summarizing certain information with respect to the resolutions:

 

Extraordinary General Meeting Resolution #		Resolution		Ordinary or Special Resolution?		Transaction Conditioned on Approval of Resolution?
1		Approve the Scheme and Articles Amendment Proposal.		Special		Yes
2		Approve, on a non-binding, advisory basis, the Compensation Proposal (the “Compensation Proposal” and together with the Scheme and Articles Amendment Proposal, the “Company Shareholder Proposals”).		Ordinary		No

At the extraordinary general meeting, the requisite approval of each of the resolutions depends on whether it is an “ordinary resolution” (Resolution #2), which requires the approval of at least a majority of the votes cast by the holders of Company shares present and voting (in person via live webcast or by proxy), or a “special resolution” (Resolution #1), which requires the approval of at least two-thirds (2/3) of the votes cast by the holders of Company shares present and voting (in person via live webcast or by proxy), in each case, entitled to vote on the subject matter (provided a quorum is present).

The votes required to approve the Company Shareholder Proposals are based on votes properly cast at the extraordinary general meeting. Because abstentions and broker non-votes are not considered votes properly cast, abstentions and broker non-votes, will have no effect on the Company Shareholder Proposals.

A broker non-vote generally occurs when a broker, bank, trust or other nominee holding shares on your behalf does not vote on a proposal because the broker, bank, trust or other nominee has not received your voting instructions and lacks discretionary power to vote the shares. Broker non-votes, if any, will be counted for the purpose of determining whether a quorum is present at the special meetings.

After careful consideration, the Company Board has (i) approved and declared advisable the transaction agreement, the transactions contemplated by the transaction agreement and the scheme (including the execution, delivery and performance of the transaction agreement and the consummation of such transactions and the scheme) and (ii) declared that it is in the best interests of Company shareholders that the Company enter into the transaction agreement and consummate such transactions and the scheme.

The Board recommends that Company shareholders vote “FOR” the proposals to approve each of the resolutions.

In considering the recommendations of the Board described above, you should be aware that certain directors and executive officers of Delphi Technologies have interests in the proposed transaction that are in addition to, or different from, any interests they might have as shareholders. For more information, see “The Transaction—Interests of Certain Persons in the Transaction” beginning on page 87. In particular, Messrs. Manganello and Adams are not participating in the recommendation of the Board due to their respective ownership of BorgWarner shares.

Voting Your Company Shares

Company shareholders whose names appear in the register of shareholders of Delphi Technologies are considered “shareholders of record” and are entitled to attend via live webcast and vote at the special meetings by visiting www.meetingcenter.io/243532838 and following the instructions on the website or they may appoint another person or persons, whether a shareholder of Delphi Technologies or not, as their proxy or proxies, to exercise all or any of their rights to attend and vote at the special meetings. Company shareholders will need the

 

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password DLPH2020 and the 15-digit control number located in the shaded bar on the applicable form of proxy in order to vote or submit any questions. Delphi Technologies recommends that you submit your proxy even if you plan to attend either or both special meetings. If you vote by proxy, you may change your vote, among other ways, if you attend and vote at either or both special meetings. Only shareholders of record as of the Voting Record Time will have the right to attend and vote at the special meetings.

If you are a shareholder of record, you may use the forms of proxy that you receive to tell the persons named as proxies how to vote your Company shares.

If you properly complete, sign and date your form of proxy, your Company shares will be voted in accordance with your instructions. The named proxies will vote all Company shares at the special meeting for which proxies have been properly submitted and not revoked. If you sign and return your forms of proxy appointing the individuals referred to on the forms of proxy as your proxy but do not mark your forms to tell the proxy how to vote on a proposal, your shares will be voted in respect of such proposal at the discretion of the named proxies.

Company shareholders of record may also vote by telephone at 1-800-652-VOTE (8683) or over the internet at www.envisionreports.com/DLPH. Voting instructions can be found on the forms of proxy you received for the special meetings. Either method of submitting a proxy will enable your Company shares to be represented and voted at the applicable special meeting.

Voting Company Shares Held in Street Name

Company shareholders who beneficially own Company shares for which Cede & Co. is the registered holder (as nominee for The Depository Trust Company) and whose interests in Company shares are held in “street name” by a broker, bank, trust or other nominee as of the Beneficial Holder Record Time, will be entitled to direct his, her or its broker, bank, trust or other nominee how to vote such beneficially held shares at the special meetings following the instructions that the broker, bank, trust or other nominee provides you along with this proxy statement. To register to attend the special meetings via live webcast and vote during the meeting, beneficial holders must submit such request, along with proof of the legal proxy and the beneficial holder’s name and email address, to Computershare. Requests for registration should be directed to: Computershare, attention: Delphi Technologies Legal Proxy, P.O. Box 43001, Providence, RI 02940-3001. Beneficial holders may also forward an email from their broker, bank, trust or other nominee of their legal proxy, or attach an image of their legal proxy, to legalproxy@computershare.com. Requests for registration must be received no later than 5:00 p.m. (Eastern time) on June 18, 2020 in order to ensure timely registration. Beneficial holders will receive a registration confirmation by email after Computershare receives the above requested information.

Your broker, bank, trust or other nominee may have an earlier deadline by which you must provide instructions to it as to how to vote your shares, so you should read carefully the materials provided to you by your broker, bank, trust or other nominee. Only beneficial owners of Company shares as of the Beneficial Holder Record Time will have the right to direct their broker, bank, trust or other nominee how to vote such Company shares.

If you do not provide a signed voting instruction form to your broker, bank, trust or other nominee, your Company shares will not be voted on any proposal on which the broker, bank, trust or other nominee does not have discretionary authority to vote. This is referred to in this proxy statement and in general as a broker non-vote. In these cases, the broker, bank, trust or other nominee will not be able to vote your shares on those matters for which specific authorization is required. Brokers do not have discretionary authority to vote on any of the proposals at either special meeting.

Accordingly, if you fail to provide a signed voting instruction form to your broker, bank, trust or other nominee, your shares held through such broker, bank, trust or other nominee will not be voted at either special meeting.

 

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YOUR VOTE IS VERY IMPORTANT. SHAREHOLDERS OF RECORD ARE RECEIVING TWO MAILINGS, ONE MAILING THAT INCLUDES A FORM OF PROXY WITH INSTRUCTIONS FOR VOTING AT THE COURT MEETING AND A SECOND MAILING THAT INCLUDES A FORM OF PROXY WITH INSTRUCTIONS FOR VOTING AT THE EXTRAORDINARY GENERAL MEETING. YOU ARE ENCOURAGED TO SUBMIT A FORM OF PROXY (OR VOTE BY TELEPHONE OR OVER THE INTERNET FOLLOWING THE INSTRUCTIONS PROVIDED IN THE FORM OF PROXY) FOR EACH OF THE COURT MEETING AND THE EXTRAORDINARY GENERAL MEETING AS SOON AS POSSIBLE. BENEFICIAL HOLDERS WILL RECEIVE VOTING INSTRUCTIONS APPLICABLE TO EACH SPECIAL MEETING FROM THEIR BROKER, BANK, TRUST OR OTHER NOMINEE. BENEFICIAL HOLDERS SHOULD FOLLOW THE DIRECTIONS PROVIDED BY THEIR BROKER, BANK, TRUST OR OTHER NOMINEE REGARDING HOW TO INSTRUCT SUCH BROKER, BANK, TRUST OR NOMINEE TO VOTE THEIR BENEFICIALLY HELD SHARES.

Revoking Your Proxy

If you are a shareholder of record, you may revoke your proxy before it is voted at the Court Meeting or before your proxy is voted at the extraordinary general meeting by:

 

•

signing and returning by mail a valid form of proxy for the applicable special meeting with a later date so that it is received by noon (Eastern time) on June 23, 2020;

 

•

before the applicable special meeting, provide written notice that you have revoked your proxy for the applicable special meeting to the Company’s Assistant Corporate Secretary, as applicable, so that it is received by noon (Eastern time) on June 23, 2020 at the following address:

Delphi Technologies PLC

3000 University Drive

Auburn Hills, Michigan 48326

Attention: Assistant Corporate Secretary;

 

•

submitting your voting instructions again by telephone or over the internet by following the instructions provided in the applicable form of proxy; or

 

•

attending the applicable special meeting via live webcast and voting at the meeting by visiting www.meetingcenter.io/243532838, with the password DLPH2020 and the 15-digit control number located in the shaded bar on your form of proxy. Simply attending the applicable special meeting, however, will not revoke your proxy or change your voting instructions; you must vote by poll at the applicable special meeting to change your vote.

Attendance at either special meeting will not, in and of itself, revoke a proxy or change your voting instructions; you must vote online at the applicable special meeting by following the instructions on the website for the live webcast to change your vote.

If you are a beneficial holder with shares held in “street name” by a broker, bank, trust or other nominee, you should follow the instructions of your broker, bank, trust or other nominee regarding the revocation of proxies.

Costs of Solicitation

Delphi Technologies will bear the cost of soliciting proxies from its shareholders. Delphi Technologies will solicit proxies by mail. In addition, the directors (other than Messrs. Manganello and Adams who have recused themselves), officers and employees of Delphi Technologies may solicit proxies from its shareholders by telephone, electronic communication, or in person, but will not receive any additional compensation for their services. Delphi Technologies will make arrangements with brokerage houses and other custodians, nominees and fiduciaries for forwarding proxy solicitation material to the beneficial owners of Company shares held of record by those persons and will reimburse them for their reasonable out-of-pocket expenses incurred in forwarding such proxy solicitation materials.

 

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Delphi Technologies has engaged a professional proxy solicitation firm Innisfree M&A Incorporated, to assist in soliciting proxies for a fee of approximately $40,000. In addition, Delphi Technologies will reimburse Innisfree M&A Incorporated for its reasonable disbursements and may, at its sole discretion, pay a success fee in the amount of 50% of all fees paid.

Other Business

Delphi Technologies is not aware of any other business to be acted upon at the special meetings. If, however, other matters are properly brought before the special meetings, the proxies will have discretion to vote or act on those matters according to their best judgment and they intend to vote the shares as the Board may recommend.

Adjournment

Any adjournment or postponement of the Court Meeting will result in an adjournment of the extraordinary general meeting.

Assistance

If you need assistance in completing your forms of proxy or have questions regarding the special meetings, please contact Innisfree M&A Incorporated, the proxy solicitation agent for Delphi Technologies by telephone. Shareholders may call toll-free at (877) 456-3463; banks and brokers may call collect at (212) 750-5833.

 

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THE TRANSACTION

The Transaction

On January 28, 2020, Delphi Technologies entered into the original transaction agreement with BorgWarner, which was subsequently amended by the amendment on May 6, 2020. Under the terms of the transaction agreement, BorgWarner, or its designated subsidiary, will acquire all of the ordinary shares of Delphi Technologies pursuant to a scheme of arrangement under Part 18A of the Companies Law. As a result of the scheme, Delphi Technologies will become a wholly owned subsidiary of BorgWarner.

In certain circumstances the transaction can be alternatively effected by way of a takeover offer or, if mutually agreed by BorgWarner and the Company, by way of a merger, in each case, subject to the terms of the transaction agreement. In such event, such takeover offer or merger will remain subject to the same conditions (except with respect to certain changes, modifications or amendments necessary, including any applicable to the Company shareholder approval as a result of such change in structure) as those which would apply in relation to the scheme, among other requirements.

At the effective time, Company shareholders will be entitled to receive, subject to any required withholding of taxes, 0.4307 of a newly issued BorgWarner share in exchange for each Company share held by such Company shareholders. BorgWarner will not issue any fractional BorgWarner shares in the transaction. Instead, each holder of Company shares who would otherwise have been entitled to receive a fraction of a BorgWarner share will receive an amount in cash, without interest and subject to any required withholding of taxes, rounded down to the nearest cent, equal to the product of (i) the amount of the fractional share interest in a BorgWarner share to which such holder would otherwise have been entitled and (ii) the Closing Volume-Weighted Average Price.

Company equity awards will be treated as set forth in the transaction agreement, such that:

 

•

each Existing RSU Award (other than Scheduled RSUs) will automatically be converted on the same terms and conditions (including applicable vesting conditions) into an award of restricted share units of BorgWarner covering a number of BorgWarner shares equal to the number of Company shares subject to the Existing RSU Award multiplied by the exchange ratio;

 

•

each Existing PSU Award (other than Scheduled PSUs) will automatically be converted on the same terms and conditions (other than performance-based vesting conditions) into an award of time-vesting restricted share units of BorgWarner covering a number of BorgWarner shares equal to the number of Company shares subject to the Existing PSU Award (determined assuming all performance vesting conditions are achieved at the greater of target and actual performance measured through the effective time) multiplied by the exchange ratio;

 

•

each Scheduled RSU, Scheduled PSU, and Existing DU Award will be cancelled and converted into the right to receive, for each Company share subject to the Scheduled RSU, Scheduled PSU (determined assuming all performance vesting conditions are achieved at the greater of target and actual performance measured through the effective time), or Existing DU Award, a cash amount, payable no later than five business days following the effective time, equal to the Cash Value; and

 

•

each Existing Option will automatically be cancelled and converted into the right to receive a cash amount, payable no later than five business days following the effective time, equal to the product of (a) the excess, if any, of the Cash Value over the exercise price per Company share of such Existing Option multiplied by (b) the total number of Company shares subject to such Existing Option. Notwithstanding the foregoing, any payments relating to an Existing RSU Award, Existing PSU Award or Existing DU Award will be delayed to the extent required by Section 409A of the Code.

Background of the Transaction

On December 4, 2017, the Company became an independent publicly-traded company, formed under the laws of Jersey, as a result of the separation of the Powertrain Systems segment, which included the aftermarket

 

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operations, from Aptiv PLC, formerly known as Delphi Automotive PLC. Since the Company’s spin-off from its former parent, the Company has focused on building out the operations, technology and human capital required of a newly-formed standalone automotive components provider. The evolving nature of the automotive industry has resulted in a need for the Company to also focus on the technological future of transportation to drive profitable long-term growth amid the various challenges facing the Company in the marketplace. This evolution has also necessitated a review of opportunistic ways for the Company to create value for our shareholders.

Accordingly, the Board, together with the Company’s senior management and with the assistance of the Company’s advisors, has periodically reviewed and considered various strategic and other opportunities available to the Company, potential operational changes and other ways to enhance shareholder value, taking into account the Company’s performance, competitive dynamics, macroeconomic developments and industry trends. These reviews have included discussions as to whether the continued execution of the Company’s strategy on a standalone basis or the possible sale of the Company to, or combination of the Company with, a third party offered a better path to enhance shareholder value, after evaluating the potential benefits and risks of each such alternative. Additionally, from time to time during the period from the Company’s spin-off through the Company’s entry into the transaction agreement, Company management considered potential strategic alternatives and engaged in business development or strategic discussions with potential counterparties. None of these discussions progressed beyond preliminary phases other than as described below.

On January 9, 2019, at the Consumer Electronics Show, an annual trade show held in Las Vegas, Frédéric Lissalde, President and Chief Executive Officer of BorgWarner, and certain other BorgWarner representatives met with Mr. Dauch and certain other Company representatives and indicated BorgWarner’s potential interest in pursuing a strategic transaction or commercial alliance with respect to the Company’s power electronics business. Given that Mr. Dauch had only been appointed as Chief Executive Officer of the Company two days earlier, Messrs. Lissalde and Dauch agreed to table such discussions for the time being. Messrs. Lissalde and Dauch had subsequently discussed a possible transaction at various times in March 2019 and June 2019, but such communications were preliminary in nature.

In May 2019, as part of the Company’s consideration of potential strategic opportunities, Mr. Dauch met with a representative of Party A to discuss a possible strategic transaction. From time to time, over the following months, Mr. Dauch engaged in further discussions with representatives of Party A and discussed the potential opportunity with members of the Board.

On July 11, 2019, BorgWarner submitted a non-binding proposal (the “initial proposal”) to acquire the Company at a price between $26.00 and $28.00 per Company share, with 50% of the consideration to be paid in cash and 50% in BorgWarner shares. The initial proposal represented a 51%-63% premium to the Company’s closing stock price on July 10, 2019. The initial proposal was based on publicly-available financial information, was subject to due diligence and was conditioned on the Company agreeing to a 45-day exclusivity period.

On July 14, 2019, based on, among other things, its reputation, experience and familiarity advising and assisting the Company on various matters prior to, in connection with, and following the Company’s spin-off in 2017, and subject to negotiating an acceptable engagement letter, the Board authorized the engagement of Goldman Sachs as the Company’s financial advisor to assist the Board with its evaluation of BorgWarner’s initial proposal and its review of the Company’s strategic alternatives. Also that day, the Board instructed Company management to prepare preliminary financial projections for the Company for 2019 through 2023 (the “preliminary financial projections”) for discussion at an upcoming Board meeting, and instructed representatives of Goldman Sachs to prepare preliminary financial analyses of the Company to assist the Board in its evaluation of BorgWarner’s initial proposal.

On July 16, 2019, the Company sent a response letter to BorgWarner, indicating that the non-binding proposal letter from BorgWarner would be reviewed by the Board.

 

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On July 24, 2019 and July 25, 2019, the Board held an in-person meeting, along with Company management and representatives of Goldman Sachs and Kirkland & Ellis LLP, the Company’s outside legal advisor. At the meeting, each of the directors and Company management disclosed their respective relationships, if any, with BorgWarner. Two members of the Board, Timothy Manganello and Robin Adams, who were previously senior executives at BorgWarner, disclosed their current ownership of BorgWarner shares to the rest of the Board. In light of Messrs. Manganello’s and Adams’ ownership interests in BorgWarner, Messrs. Manganello and Adams recused themselves from the portions of all Board meetings relating to a potential transaction with BorgWarner, except in specific instances when they were invited by the remaining members of the Board to share their unique perspectives and insights on BorgWarner and its management team, operations and prospects. For purposes of the remainder of this section and the section of this proxy statement entitled “—Recommendation of the Board and Reasons for the Transaction,” unless expressly stated otherwise, each reference to the Board refers to the Board without the presence, participation or recommendation of Messrs. Manganello and Adams.

At the meeting, participants discussed various challenges facing the Company, including, among other things, (i) faster-than-expected declines in demand for light-duty diesel-powered vehicles driven in part by global regulatory changes, which would result in the Company’s diesel fuel injection business declining at a more rapid pace than was forecasted by analysts at that time, (ii) lengthening of the electrification cycle of light-duty vehicles, which would result in a longer-than-anticipated investment cycle for the Company’s power electronics business, (iii) a slowdown in the Asia-Pacific region (primarily China), particularly in the power electronics business, (iv) the additional investment required to both support the Company’s rapidly growing gasoline direct injection (“GDi”) business and maintain the Company’s leading position in the power electronics industry, (v) a slowdown in global vehicle production, and (vi) other challenges facing the Company as a standalone automotive components provider. Following discussion, the Board instructed Company management to reflect these considerations in the preliminary financial projections it was preparing, which would form the basis of the preliminary financial projections that the Company ultimately shared with BorgWarner on August 29, 2019. In response to these challenges, Company management presented its proposed restructuring plan that included various strategic initiatives related to divesting non-core product lines, manufacturing sites and technical centers, cost cutting initiatives aimed at reducing the Company’s selling, general and administrative expenses, and other potential opportunities that the Company could undertake. Company management also reviewed the various assumptions, risks and pro-forma impact of these restructuring initiatives and opportunities on the Company’s financial performance and budget. Following discussion, the Participants then discussed the potential strategic benefits of a transaction with BorgWarner, including, among other things, that the combined company would (i) be better capitalized as compared to the Company on a standalone basis, with a stronger balance sheet that would enable the Company to, among other things, accelerate growth initiatives, pursue additional investment and restructuring opportunities and better withstand industry challenges and macroeconomic headwinds, (ii) achieve improved profitability through various revenue and cost synergies, (iii) have enhanced scale and efficiencies in its operations and (iv) have improved offerings for customers through an expanded and complementary product portfolio (including the ability to offer complete systems solutions). Representatives of Goldman Sachs then provided an overview of BorgWarner’s initial proposal and reviewed their preliminary financial analyses based on the preliminary financial projections. Representatives of Goldman Sachs also reviewed with the Board their preliminary perspectives on other parties that could potentially be interested in a transaction with the Company, including information relating to such potential party’s ability to pay. For administrative convenience and efficiency, the Board formed a transaction committee (the “Committee”) to facilitate the Board’s evaluation of a potential transaction with BorgWarner and appointed David S. Haffner, Joseph S. Cantie, Nelda J. Connors and Gary L. Cowger to the Committee, with Mr. Haffner serving as the Committee Chair. The Board then discussed potential responses to BorgWarner’s initial proposal and instructed the Committee, with the assistance of representatives of Goldman Sachs and Kirkland, to formulate a response for Mr. Dauch to deliver to BorgWarner.

On August 1, 2019, the Company announced its financial results for the second quarter of 2019, reporting a 9% decrease in revenue and a nearly 69% decrease in net income from the prior year period, and lowered its full-year 2019 revenue guidance by 5% and earnings guidance by 11%, primarily attributable to an unfavorable product

 

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mix in which revenue declined in its higher-margin diesel fuel injection systems business and increased in its lower-margin GDi business. The Company’s share price traded lower by more than 8% that day.

On August 5, 2019, the Committee held a telephonic meeting with Company management and representatives of Goldman Sachs and Kirkland participating. At the meeting, Company management presented an updated draft of the preliminary financial projections. Representatives of Goldman Sachs then reviewed Goldman Sachs’ updated preliminary financial analyses of the Company based on the revised preliminary financial projections. The Committee then discussed the potential benefits of a transaction with BorgWarner and its assessment of BorgWarner on a standalone basis, noting, among other things, its view that BorgWarner was competitively well-positioned to withstand a rapidly changing industry environment with its strong management team, diverse and balanced product portfolio, global customer base and operations, long-term operating track record, strong balance sheet and strong credit ratings. After discussion, the Committee determined that BorgWarner’s initial proposal underestimated the synergies that could be realized in a combination and recommended that the Board reject BorgWarner’s request for exclusivity, but that Company management offer an in-person meeting to further discuss the potential benefits of a combination and share the Company’s internal financial projections. The Committee’s recommendation was approved by the Board, and on August 7, 2019, Mr. Dauch communicated the response to Mr. Lissalde, who agreed to move forward with an in-person meeting.

On August 11, 2019, the Company sent a draft of a mutual non-disclosure agreement to BorgWarner. From August 11, 2019 to August 19, 2019, the Company and BorgWarner negotiated the terms of the non-disclosure agreement and on August 20, 2019 entered into the agreement, which contained customary terms, including mutual non-solicitation, non-hire and standstill provisions.

On August 29, 2019, Company management met with BorgWarner’s management to discuss the potential transaction. Representatives of Goldman Sachs and BofA Securities, Inc. and Rockefeller Capital Management, BorgWarner’s financial advisors, were present at the meeting. During the meeting, Company management shared, among other things, an overview of the Company and its business units, information regarding its cost-saving restructuring plans, preliminary views regarding potential synergies that could be achieved in the proposed transaction, and its preliminary financial projections that were updated in August, which projected the Company’s Adjusted EBITDA to be lower by 8.2% and 14.7% for 2019 and 2020, respectively, as compared with the publicly available financial information and analyst consensus estimates that were used by BorgWarner when formulating its initial proposal. BorgWarner’s management also shared with the Company certain confidential information regarding BorgWarner.

On September 12, 2019, Messrs. Lissalde and Dauch met and discussed the potential merits and risks of a possible combination of BorgWarner and the Company, with Mr. Lissalde noting that BorgWarner needed more time to understand the implications of the preliminary financial projections shared with BorgWarner in August and the fact that such projections were materially lower than publicly available financial information and analyst consensus estimates. Following this meeting, BorgWarner requested and received additional financial details regarding the Company’s business, and representatives of the Company and BorgWarner and their respective advisors held follow-up diligence calls on September 20 and September 24, 2019.

On October 1, 2019, BorgWarner submitted a revised non-binding preliminary proposal (“second proposal”) to acquire the Company for $22.00 per Company share, with 60% of the consideration to be paid in cash and 40% in BorgWarner shares. BorgWarner’s second proposal represented a decrease of $4.00 to $6.00 per Company share from the initial proposal, which BorgWarner indicated was proportional to the material difference between the projections that were shared with BorgWarner in August and the analyst consensus estimates that informed BorgWarner’s initial proposal. BorgWarner’s second proposal also noted, among other things, industry headwinds, greater-than-expected declines in the Company’s legacy powertrain business (with margins failing to recover to historical levels) and the Company’s reliance on growth in its lower-margin GDi and power electronics businesses to support its future financial performance. As the Company’s share price had declined since BorgWarner’s initial proposal, the second proposal represented a 64% premium to the Company’s closing share price on September 30,

 

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2019. The Adjusted EBITDA multiple implied by BorgWarner’s second proposal (based on the Company’s latest financial projections) was substantially in line with the multiple in its initial proposal. As part of its second proposal, BorgWarner again conditioned its offer on the Company agreeing to a 45-day exclusivity period.

In early October 2019, Company management met to discuss the Company’s business and financial performance based on third quarter financial results and estimates with respect to each of the Company’s business units. At the meeting, participants discussed, among other things, weaker-than-expected financial forecasts that were attributable to, among other things, (i) slower-than-expected margin improvement in the Company’s GDi and power electronics businesses, (ii) further declines in commercial vehicle demands, including with respect to North America, (iii) further declines in the Company’s light-duty diesel-powered vehicles business, including with respect to Europe, (iv) industry headwinds from, among other things, increased competition, technological changes, shorter product life-cycles and consumer demand cyclicality, and (v) greater-than-expected capital expenditure in the Company’s GDi business. Following discussion, the participants discussed updating the preliminary financial projections shared with BorgWarner in August to account for these challenges.

On October 10, 2019, the Committee held a telephonic meeting with Company management and representatives of Goldman Sachs and Kirkland participating. At the meeting, Company management presented its proposed restructuring plan to address the challenges facing the Company. Company management also reviewed for the Committee its updates to the preliminary financial projections shared with BorgWarner in August (the “October Projections”), which projected the Company’s Adjusted EBITDA to be lower by 6.7% and 8.6% for 2019 and 2020, respectively, as compared with the projections previously provided to BorgWarner in August, with the Company’s financial performance rebounding in the later years. Members of the Committee discussed the October Projections and various assumptions and risks underlying those projections. At the meeting, representatives of Goldman Sachs also provided an update on the engagement with BorgWarner to date, including describing the terms of BorgWarner’s second proposal.

On October 14, 2019, Messrs. Lissalde and Dauch met to discuss the proposed transaction, including the challenges faced by the Company and the potential impact of the Company’s proposed restructuring plan.

On October 15, 2019, at the direction of the Company, representatives of Goldman Sachs provided the October Projections to representatives of BofA Securities.

Over the course of the period from October 15, 2019 through October 18, 2019, Company management and representatives of Goldman Sachs engaged in additional discussions and provided additional information to BorgWarner’s management and representatives of BofA Securities regarding the October Projections including, in particular, the decline in projected revenue, earnings, and unlevered free cash flows relative to the projections previously provided to BorgWarner in August.

On October 20, 2019, Messrs. Lissalde and Dauch had a telephonic conversation regarding the proposed transaction and discussed, among other matters, the developments reflected in the October Projections, the strategic rationale of the proposed transaction, including the anticipated revenue and cost synergies and the opportunity for Company shareholders to participate in the potential value creation of the combined company, and the potential for follow-up diligence discussions in early November.

On October 22, 2019, Mr. Lissalde sent a letter to Mr. Dauch reiterating BorgWarner’s interest in a potential transaction with the Company and its desire to hold follow-up diligence discussions in early November.

Mr. Lissalde’s letter also indicated that the BorgWarner board of directors was scheduled to meet later in November after which time BorgWarner would be in a position to share its further thoughts on the potential transaction in light of the October Projections.

Later that day, the Board held an in-person meeting with Company management and representatives of Goldman Sachs and Kirkland participating. At the meeting, Company management reviewed for the Board, among other

 

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things, the financial results for the third quarter of 2019 and Company management’s proposed restructuring plan. Following discussion, the Board approved the restructuring plan. The Board and representatives of Goldman Sachs then discussed the terms of BorgWarner’s second proposal, the reasons cited by BorgWarner for its revised offer and BorgWarner’s continued significant interest in a transaction. After discussion, the Board determined that, unless BorgWarner increased its offer, it would suspend discussions at that time and instructed Mr. Dauch and representatives of Goldman Sachs to convey that message to representatives of BorgWarner and BofA Securities.

On October 24, 2019, representatives of BofA Securities submitted a due diligence request on behalf of BorgWarner for additional updated financial information on the Company.

On October 28, 2019, Messrs. Lissalde and Dauch had a telephonic conversation regarding the proposed transaction and to follow up on the additional financial due diligence items that were requested by BorgWarner in the prior week.

On October 29, 2019, the Company communicated to BorgWarner that no additional information or access would be provided by the Company.

On October 31, 2019, the Company announced its financial results for the third fiscal quarter of 2019, reporting an 11% decrease in revenue, a 64% decrease in quarterly earnings per diluted share to $0.16, and a nearly 50% decrease in net income from the prior year period, and again lowered its full-year 2019 revenue guidance by 3% and earnings guidance by 16%. Also that day, the Company announced its new restructuring plan and the suspension of its share repurchase program. The Company’s share price declined nearly 8% later that day.

On November 10 and November 11, 2019, Messrs. Lissalde and Dauch had telephonic conversations regarding the proposed transaction and discussed next steps, including BorgWarner potentially submitting a further revised non-binding preliminary proposal.

On November 13, 2019, BorgWarner submitted a revised non-binding preliminary proposal (the “third proposal”) to acquire the Company for $5.00 per Company share in cash and aggregate stock consideration of 30 million BorgWarner shares, which represented an implied exchange ratio of approximately 0.341 BorgWarner shares for each Company share, an implied purchase price of approximately $20.59 per Company share and a premium of approximately 61% to the Company’s trading price as of November 12, 2019. The Adjusted EBITDA multiple implied by BorgWarner’s third proposal (based on the Company’s latest financial projections) was substantially in line with the multiple in its prior proposals. BorgWarner’s third proposal was also conditioned on the Company agreeing to a 30-business day exclusivity period and expired by its terms on November 27, 2019.

On November 18, 2019, Messrs. Lissalde and Dauch had a telephonic conversation regarding BorgWarner’s revised non-binding proposal and the proposed transaction. The following day, Mr. Dauch sent Mr. Lissalde a letter indicating that the Board was scheduled to meet on December 4 and 5, 2019, after which time the Company would respond to the latest BorgWarner proposal.

On November 21, 2019, the Committee held a telephonic meeting with Company management and representatives of Goldman Sachs and Kirkland participating. Company management presented updates to the October Projections to reflect the impact of the Company’s restructuring plan and a further decline in projected revenue, earnings, and free cash flows. Following discussion, the Committee instructed Company management to further update those projections to reflect an acceleration of the restructuring plan, which would result in additional costs in the near-term with benefits expected to be realized in later years. The participants then discussed, among other matters, BorgWarner’s third proposal, the Company’s standalone prospects, and other strategic alternatives potentially available to the Company. It was noted that, while the proposal represented a decrease in the implied purchase price as compared to BorgWarner’s second proposal, the significant increase in

 

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the equity component of the consideration (76% of total consideration as compared to 40% in the second proposal) provided Company shareholders with a greater opportunity to participate in the potential value creation of the combined company, including an increased share of the anticipated synergies. The Committee also discussed potential downside risk to Company shareholders if the Company failed to successfully execute its standalone plan. The Committee’s assessment of the opportunity to participate in the potential value creation of the combined company was based on its evaluation of the financial information provided by BorgWarner during the August 29^th meeting and publicly available financial information. Additional information pertaining to the evaluation of the benefits resulting from accepting as consideration BorgWarner shares is set forth in the section of the proxy statement captioned “—Recommendation of the Board and Reasons for the Transaction.” It was also noted that the exchange ratio of approximately 0.341 BorgWarner shares for each Company share along with $5.00 per Company share in cash, collectively, represented a premium of approximately 61% to the Company’s trading price as of November 12, 2019.

In December 2019, the Company became aware that it would likely need to amend its credit agreement, dated September 7, 2017, with JPMorgan Chase Bank, N.A., as administrative agent, and other lenders (the “credit agreement”) to manage a potential breach of certain financial covenants, including the leverage ratio test in the credit agreement, due to the Company’s weakening financial performance and costs associated with implementing the Company’s restructuring plan. Accordingly, the Company began negotiating an amendment to the credit agreement with its lenders.

Also in December 2019, following further discussions with representatives of Party A, the Board determined that the Company would not pursue a strategic transaction with Party A due to, among other reasons, meaningful execution risks and significant costs associated with that potential transaction.

On December 4, 2019, the Company received a non-binding preliminary proposal from Party B, a financial sponsor, to acquire the Company for $18.00 to $21.00 per Company share in cash, which was based on publicly available financial information and was subject to Party B’s due diligence review and the availability of debt financing. At that time, publicly available Wall Street consensus estimates for Adjusted EBITDA for 2019 and 2020 were higher than those reflected in the Company’s latest projections, which were updated in November by 3.3% and 8.2%, respectively.

Later that day, the Board held a telephonic meeting with Company management and representatives of Goldman Sachs and Kirkland participating. Representatives of Goldman Sachs discussed BorgWarner’s third proposal and Goldman Sachs’ updated financial analyses. Participants also discussed the status of BorgWarner’s due diligence. Participants then discussed Party B’s all-cash proposal. Representatives of Goldman Sachs noted that it was unlikely that a financial sponsor would be able to meaningfully compete with BorgWarner’s proposal due to, among other things, the potential synergies that could be realized in a transaction with BorgWarner. The participants also discussed the fact that Party B’s proposal was based on publicly available information and the likelihood that Party B’s proposal would be reduced or withdrawn once Party B received the Company’s internal financial projections and engaged in customary financial due diligence. The Board then discussed the risk of losing the transaction with BorgWarner if the Company were to engage with Party B. Representatives of Kirkland reviewed for the Board, among other things, its fiduciary duties in considering whether to grant exclusivity to BorgWarner. Representatives of Kirkland also explained that any agreement with BorgWarner would likely contain a fiduciary-out provision that would enable the Board to accept a superior proposal, subject to the payment of a termination fee. The Board further reviewed BorgWarner’s third proposal and determined that the magnitude of potential synergies that could be realized in a transaction with BorgWarner would support an increase in BorgWarner’s offer. The Board further discussed its desire that Company shareholders receive a larger portion of the consideration in stock, in part so they could benefit from the greater profitability that the combined company could realize from the expected synergies. The Board discussed the potential value creation that could result from the transaction and the opportunity to receive BorgWarner stock at what it deemed to be an attractive valuation level. Following discussion, the Board determined not to engage with Party B at that time and

 

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to request that BorgWarner increase its purchase price by $2.00 per Company share, with a preference that the increase take the form of stock. The Board directed Mr. Dauch to convey that message to BorgWarner. Additional information pertaining to the evaluation of the benefits resulting from accepting BorgWarner shares as consideration is set forth in the section of the proxy statement captioned “—Recommendation of the Board and Reasons for the Transaction.”

On December 6, 2019, Mr. Dauch called Mr. Lissalde to convey the Board’s request for a $2.00 per Company share increase in the purchase price and the Board’s preference for such increase to take the form of stock. Also on that day, Company management updated its 2019 to 2023 financial projections (the “December Projections”), which were shared with representatives of Goldman Sachs, BorgWarner and BofA Securities. As compared to the October Projections previously shared with BorgWarner, the December Projections incorporated the implementation of the restructuring plan, more recent actual year-to-date results and a further decline in projected revenue, earnings, and free cash flows due to the various industry headwinds facing the Company, including downward revisions to 2019 and 2020 Adjusted EBITDA of 6.6% and 7.5%, respectively, compared to the October Projections.

On December 8, 2019, BorgWarner submitted a further revised non-binding preliminary proposal (the “fourth proposal”) to acquire the Company for $5.00 per Company share in cash and aggregate stock consideration of 32 million BorgWarner shares (representing an implied exchange ratio of approximately 0.364 BorgWarner shares for each Company share, an implied purchase price of approximately $20.77 per Company share and a premium of approximately 61% to the Company’s trading price on December 6, 2019). The Adjusted EBITDA multiple implied by BorgWarner’s fourth proposal (based on the Company’s latest financial projections) was substantially in line with the multiple in its prior proposals. BorgWarner’s fourth proposal was conditioned on the Company agreeing to a 30-business day exclusivity period.

On December 10, 2019, the Board held a telephonic meeting with representatives of Goldman Sachs and Kirkland participating. At the meeting, representatives of Kirkland again reviewed for the Board its fiduciary duties in the context of its evaluation of a proposed transaction. Representatives of Goldman Sachs provided an update on the status of discussions with BorgWarner and a summary of BorgWarner’s fourth proposal. The Board then discussed the strategic benefits of the proposed transaction with BorgWarner that made it an ideal consolidation partner, noting, among other things, that BorgWarner was competitively well-positioned with a strong management team, had a successful track record of financial performance, possessed a strong balance sheet and credit ratings, and possessed a diverse and balanced product portfolio. Representatives of Goldman Sachs also reviewed their updated financial analyses based on the December Projections. The participants then discussed BorgWarner’s request for a 30-business day exclusivity period. At the conclusion of the meeting, the Board instructed Mr. Dauch to request that BorgWarner increase its purchase price by an additional $1.00 per Company share. The Board then instructed the Committee to further negotiate any response from BorgWarner within the parameters they discussed, including agreeing to the requested exclusivity.

Later that day, Mr. Dauch called Mr. Lissalde to deliver the response. Mr. Lissalde indicated that BorgWarner was willing to increase its purchase price by $0.50 per Company share and that this was the highest price BorgWarner would offer.

On December 12, 2019, BorgWarner submitted a non-binding proposal (the “fifth proposal”) to acquire the Company for $5.50 per Company share in cash, reflecting the purchase price increase offered by Mr. Lissalde on December 10, and aggregate stock consideration of 32 million BorgWarner shares (representing an implied exchange ratio of approximately 0.364 BorgWarner shares for each Company share, an implied value of approximately $21.47 per Company share and a premium of approximately 62% to the Company’s trading price as of December 11, 2019). The Adjusted EBITDA multiple implied by BorgWarner’s fifth proposal (based on the Company’s latest financial projections) was substantially in line with the multiple in its prior proposals. The fifth proposal was conditioned on the Company agreeing to an exclusivity period that would expire on January 31, 2020.

 

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Later that day, the Committee held a telephonic meeting with Company management and representatives of Goldman Sachs participating. At the meeting, the Committee discussed the terms of BorgWarner’s fifth proposal, the potential synergies and strategic benefits and risks related to the proposed transaction, the premium implied by the proposed consideration to be paid to Company shareholders, and the various risks and challenges facing the Company on a standalone basis. After discussion, the Committee determined to proceed toward a transaction with BorgWarner and authorized Company management, with the assistance of its advisors, to negotiate and execute an exclusivity agreement, to proceed to negotiate the various transaction documents and to complete due diligence.

On December 13, 2019, the Company entered into an exclusivity agreement with BorgWarner that expired at 11:59 p.m. New York time on January 31, 2020, but which terminated in the event that BorgWarner changed the financial terms of its fifth proposal in a manner adverse to the Company.

On December 16, 2019, Company management held an in-person meeting with BorgWarner’s management and representatives of Kirkland and Simpson Thacher & Bartlett LLP, BorgWarner’s outside legal advisor. At the meeting, the parties discussed, among other things, a reciprocal due diligence plan and the process for negotiating definitive transaction agreements.

From December 16, 2019 through the execution of the original transaction agreement on January 28, 2020, both parties’ management teams held numerous in-person and telephonic due diligence meetings with their respective advisors and shared various due diligence materials. Specific due diligence sessions were held to review the Company’s financials, business units, commercial and sales activities, tax matters, information systems, technology (including intellectual property), cost and revenue synergies, legal matters, human resources (including pensions), treasury matters, accounting, restructuring, real estate (including select site visits), investor relations and communications, among other topics. As part of this mutual due diligence process, the Company and BorgWarner negotiated and entered into a mutual clean team agreement on December 27, 2019 and a joint defense agreement on December 30, 2019.

Commencing on January 7, 2020, the Company engaged in reverse due diligence on BorgWarner, including an in-person reverse due diligence session on January 13, 2020.

On January 8, 2020, representatives of Simpson Thacher sent representatives of Kirkland an initial draft of the proposed original transaction agreement. During the following three weeks, representatives of Kirkland and Simpson Thacher negotiated and exchanged drafts of the original transaction agreement and other transaction documents in coordination with the Company and BorgWarner. The negotiations focused on, among other things, the conditionality of the transaction, covenants with respect to obtaining regulatory approvals, the circumstances in which each party could terminate the original transaction agreement, the termination fee amount, and the restrictions on the conduct of the Company’s business prior to the closing of the transaction.

On January 13, 2020, Kirkland provided a summary of key issues on the draft original transaction agreement to Simpson Thacher. The list included comments regarding, among other matters, (i) the Company’s non-solicitation covenant, (ii) the fact that the Board was not able to change its recommendation of the transaction in the absence of a superior proposal by a third party, (iii) BorgWarner’s obligations in connection with obtaining required regulatory approvals, (iv) certain representations and warranties regarding the Company’s outstanding debt, key customer programs and 2019 financial statements, (v) certain covenants restricting the Company’s operations between signing and closing, (vi) certain conditions to closing related to the Company’s 2019 and 2020 EBITDA (the “EBITDA condition”) and the performance of the Company’s top customer programs in the GDi and power electronics businesses (the “key customer condition”), (vii) a “force the vote” requirement which would not permit the Company to terminate the agreement to accept a superior proposal, (viii) a proposed $100 million termination fee payable by the Company upon certain triggering events, and (ix) a requirement for the Company to pay $25 million of expense reimbursement to BorgWarner if the Company shareholders did not approve the proposed transaction.

 

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On January 14 and January 15, 2020, representatives of the Company, BorgWarner, Kirkland, Simpson Thacher, Goldman Sachs and BofA Securities held in-person meetings to discuss and negotiate the key issues in the original transaction agreement. At the meetings, BorgWarner’s management expressed concerns regarding the repeated declines in the Company’s financial forecasts, including the projected decline in cash flows and the potential need for the Company to increase its total indebtedness. BorgWarner’s management also expressed concerns regarding the customer programs associated with the Company’s GDi and power electronics businesses, including the underlying execution risk of customer programs that had been booked by the Company but not yet launched and the potential risks associated with pricing, volume and termination of the existing customer programs, and, in particular, the implications of a recently terminated key customer program in the GDi business. BorgWarner’s concerns were reflected in the key customer condition and the EBITDA condition in the original transaction agreement that related to the performance of the Company’s top customer programs in the GDi and power electronics businesses and the achievement of the Company’s projected EBITDA through the closing of the proposed transaction. Pursuant to BorgWarner’s draft of the original transaction agreement, BorgWarner would not be required to consummate the transaction in the event of a failure to satisfy either condition.

On January 16, 2020, the Board held a telephonic meeting with Company management and representatives of Goldman Sachs and Kirkland participating. Company management provided an update on the process with BorgWarner to date and noted BorgWarner’s desire to sign and publicly announce a transaction on January 28, 2020. Company management also updated the Board on the results of its reverse due diligence review of BorgWarner to date, noting, among other things, its overall positive impressions about BorgWarner’s businesses and organization and its perspective that there were meaningful strategic benefits that could be derived from a combination of the two companies as well as potential upside value creation for Company shareholders following the transaction. The Board then discussed BorgWarner’s concerns resulting from BorgWarner’s due diligence regarding the performance and outlook of certain businesses of the Company and, in particular, the implications of the recent loss of a key customer program and the declines in the Company’s financial forecasts. Representatives of Kirkland then reviewed the terms of the original transaction agreement and described the remaining key open items, including, among other things, (i) the key customer condition, (ii) the EBITDA condition, (iii) BorgWarner’s request for a “force the vote” requirement which would not permit the Company to terminate the agreement to accept a superior proposal, (iv) the amount of the termination fee and expense reimbursement obligation, (v) certain representations and warranties regarding the 2019 financial statements, and (vi) limitations on the Company’s ability to make 2020 equity award grants and the treatment of outstanding equity awards in connection with the proposed transaction. The Board provided its feedback and instructed Company management and its advisors to continue negotiations.

On January 17, 2020, Kirkland distributed a revised draft of the original transaction agreement to Simpson Thacher. Company management also shared the Company’s actual financial results for the fiscal year ending 2019 and its projections for 2020 to 2023 (collectively, the “January Company Projections”) with representatives of Goldman Sachs, BorgWarner and BofA Securities on January 18, 2020. Additional information pertaining to the January Company Projections is set forth in this section of the proxy statement captioned “—Delphi Technologies Unaudited Prospective Financial Information.” Also on that day, Goldman Sachs provided a letter to the Company confirming that in the two years preceding the date of the letter, the Investment Banking Division of Goldman Sachs had not been engaged by BorgWarner or its affiliates to provide financial advisory or underwriting services for which Goldman Sachs had recognized compensation and confirmed that nothing would limit Goldman Sachs’ ability to fulfill its potential responsibilities as financial advisor to the Company in connection with a contemplated engagement of Goldman Sachs as financial advisor in connection with the potential transaction.

On January 19, 2020, Mr. Lissalde informed Mr. Dauch that BorgWarner proposed to change the transaction consideration to an aggregate of 36 million BorgWarner shares and no cash consideration (the “sixth proposal”), which represented an implied exchange ratio of approximately 0.410 BorgWarner shares for each Company share, an implied purchase price of approximately $17.03 per Company share and a premium of approximately 52% to the Company’s trading price as of January 17, 2020. The Adjusted EBITDA multiple implied by

 

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BorgWarner’s sixth proposal (based on the Company’s latest financial projections) was substantially in line with the multiple in its prior proposals. Mr. Lissalde explained that the change in consideration was based on, among other factors, (i) BorgWarner’s concerns about the Company’s ability to achieve its projections for 2023, (ii) the recent loss of a key customer program in the Company’s GDi business and the resulting financial impact, (iii) increased unbudgeted costs related to the Company’s investments and need for future investments in IT systems, (iv) a higher than estimated tax rate for the Company going forward and (v) BorgWarner’s view that the margin outlook in several business units could not be substantiated during due diligence. Mr. Lissalde indicated that these negative findings during due diligence were only partially offset by BorgWarner’s identification of additional cost synergies. As part of the sixth proposal, Mr. Lissalde indicated to Mr. Dauch that BorgWarner would be able to provide accommodations on certain key open issues in the original transaction agreement, including (i) BorgWarner’s agreement that the Board could change its recommendation of the transaction following an intervening event or a superior proposal by a third party, (ii) BorgWarner’s agreement to concede on certain intellectual property and 2019 financial statement representations and warranties, (iii) BorgWarner’s agreement to concede the EBITDA condition and the key customer condition, and (iv) a reduced termination fee.

On January 20, 2020, Mr. Lissalde shared BorgWarner’s due diligence findings and assessment with the Company, including a summary of BorgWarner’s perspective on the Company’s business plan and potential synergies which may be achieved in the proposed transaction, as further context supporting its sixth proposal.

On January 21, 2020, Moody’s downgraded the Company’s corporate family rating and probability of default rating from Ba3 and Ba3-PD to B1 and B1-PD, respectively, and its senior unsecured rating from B1 to B2, indicating that the Company’s outlook remained negative.

On January 22, 2020, the Board held an in-person meeting, with Company management and representatives of Goldman Sachs and Kirkland participating. Company management provided an overview of BorgWarner’s operational and financial performance based on the Company’s due diligence review. Participants also discussed the downgrade of the Company’s credit ratings and related increase in financing costs, the proposed amendment to the credit agreement, the Company’s downward adjustments to the Company’s financial forecasts, the trading performance of BorgWarner shares and Company shares, and potential strategic benefits and risks of the proposed transaction. Representatives of Goldman Sachs then reviewed Goldman Sachs’ updated preliminary financial analyses. After discussion, the Board determined that BorgWarner’s sixth proposal undervalued the Company and discussed the likelihood that BorgWarner would be willing to offer a higher price. The Board also discussed a variety of potential responses to BorgWarner. As part of that discussion, representatives of Kirkland also reviewed the status of negotiations of the original transaction agreement, noting BorgWarner’s continued request for a “force-the-vote” provision and the negotiations regarding the size of the termination fee. After discussion, the Board determined to reject BorgWarner’s sixth proposal and not make any counterproposal.

Later that day, at the direction of the Board, Mr. Dauch and representatives of Goldman Sachs contacted Mr. Lissalde and representatives of BofA Securities to inform them of the Board’s decision to discontinue negotiations with BorgWarner.

On January 23, 2020, Alexis Michas, BorgWarner’s chairman, contacted Mr. Manganello requesting an in-person meeting on January 24^th. Mr. Manganello notified the Committee of Mr. Michas’ outreach and, in light of Mr. Manganello’s recusal from involvement in the Board’s evaluation of a potential transaction with BorgWarner, Mr. Cantie and Mr. Haffner joined the meeting with Mr. Michas. Mr. Manganello left at the outset of the meeting (before any proposal was discussed). Following the departure of Mr. Manganello, Mr. Michas acknowledged a number of factors relevant to BorgWarner’s offer for the Company that had been previously discussed between the respective companies and their advisors. Mr. Michas orally delivered BorgWarner’s “best and final” proposal (the “final proposal”) to acquire the Company for aggregate consideration of approximately 40 million BorgWarner shares, which was subsequently conveyed in writing by BorgWarner. This represented an implied exchange ratio of approximately 0.4534 BorgWarner shares for each Company share, an implied purchase price of approximately $17.39 per Company share and a premium of approximately 77% to the

 

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Company’s trading price on January 27, 2020. Based on preliminary unaudited financial results of the Company, the offer implied an enterprise value, not including the impact of after-tax unfunded pension liabilities, of 5.7x the Company’s 2019 Adjusted EBITDA, which was substantially in line with the Adjusted EBITDA multiples implied by the offer price in each of BorgWarner’s prior proposals (based on the Company’s financial projections at the time of each proposal or, in the case of the initial proposal, analyst consensus estimates at such time).

Later that day, the Board held a telephonic meeting, with Company management and representatives of Goldman Sachs and Kirkland participating, during which the Board reviewed the terms of BorgWarner’s final proposal. Representatives of Goldman Sachs then reviewed Goldman Sachs’ updated preliminary financial analyses based on the January Company Projections. The Board determined that additional clarity was needed in respect of certain matters relating to the inclusion of employee equity awards in the aggregate number of shares being offered in the final proposal. Subject to this clarification, the Board was willing to proceed on the basis of BorgWarner’s “best and final” proposal and directed Company management and representatives of Kirkland to continue working to finalize transaction documents. Later that day, Simpson Thacher distributed a revised draft of the original transaction agreement to Kirkland.

From January 24, 2020 until January 28, 2020, representatives of the Company and BorgWarner, along with their respective advisors, held numerous discussions to resolve the final remaining open issues in the original transaction agreement including, among other things, (i) BorgWarner’s obligations in connection with obtaining required regulatory approvals, (ii) a covenant requiring the Company to identify and ensure ownership of certain material patents, (iii) the deletion of the “force the vote” requirement and the expense reimbursement provision and (iv) the amount of the termination fee payable by the Company under certain circumstances.

During this time, representatives of BofA Securities shared with representatives of Goldman Sachs calculations related to the Company’s outstanding fully-diluted share count as prepared by BorgWarner and, at the direction of the Company, representatives of Goldman Sachs shared with representatives of BofA Securities calculations related to the Company’s fully-diluted share count prepared by Company management. On January 26, 2020, Messrs. Lissalde and Dauch had a telephone conversation regarding the proposed consideration to be paid in the transaction and the inclusion of outstanding employee equity awards in the aggregate share number being offered, and representatives of BofA Securities and Goldman Sachs discussed the proposed consideration and the Company’s current capitalization. At the conclusion of these discussions, Messrs. Lissalde and Dauch finalized the exchange ratio at 0.4534 BorgWarner shares for each Company share.

On January 27, 2020, Messrs. Lissalde and Dauch had an in-person meeting to discuss the proposed final terms for the transaction.

Later that day, the Board held a telephonic meeting, with Company management and representatives of Goldman Sachs and Kirkland participating. Mr. Haffner provided an update on the discussions with representatives of BorgWarner and BofA Securities since the last Board meeting. Representatives of Kirkland then reviewed for the Board its fiduciary duties in the context of the proposed transaction. Representatives of Kirkland then reviewed the principal terms of the proposed original transaction agreement, noting the outcome of previously open points, including, among other things, that BorgWarner had agreed to (i) remove the “force-the-vote” provision so that the Company could immediately terminate the original transaction agreement if the Board received an alternative acquisition proposal that it determined was a superior proposal, subject to paying the termination fee, and (ii) a termination fee equal to $53.5 million. Representatives of Kirkland also reviewed the potential change of control payments that may become payable to Company management. Additional information pertaining to the interests of Company management is set forth in this proxy statement under the heading “—Interests of Certain Persons in the Transaction.” Representatives of Goldman Sachs then reviewed Goldman Sachs’ financial analyses of the Company. Representatives of Goldman Sachs then rendered Goldman Sachs’ oral opinion, subsequently confirmed in writing, that, as of the date of such opinion and based upon and subject to the factors and assumptions set forth therein, Goldman Sachs’ was of the opinion that the exchange ratio of 0.4534 BorgWarner

 

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shares to be issued in exchange for each Company share pursuant to the original transaction agreement was fair, from a financial point of view, to the holders (other than BorgWarner and its affiliates) of Company shares. Company management previewed for the Board the various transaction-related communications that would be issued following the announcement of the potential transaction and explained that the Company would simultaneously release, with the announcement of the transaction, a summary of the Company’s preliminary fourth fiscal quarter and year-end financial results for 2019.

The Board further discussed the potential transaction and various reasons and factors that members of the Board considered in forming their view that the proposed transaction was advisable and in the best interests of the Company and its shareholders. The Board noted the potential strategic benefits of a transaction with BorgWarner, including, among other things, the anticipated revenue and cost synergies, the opportunity to participate in the potential value creation of the combined company and the ability to meaningfully accelerate growth initiatives and pursue additional investment and restructuring opportunities. The Board also considered various challenges facing the Company, including, among other things, macroeconomic challenges resulting in a slowdown in anticipated global vehicle production, industry headwinds from increased competition, technological changes, shorter product life cycles and consumer demand cyclicality and faster than expected declines in the Company’s higher margin diesel fuel injection systems business and commercial vehicles business. Considering the strategic benefits of the transaction and the various challenges facing the Company on a standalone basis, the Board expressed its belief that the expected value to be received by Company shareholders under the transaction reflected a higher value than would be achieved under the Company’s standalone plan. The Board then, taking into account the foregoing and its previous meetings and discussions: (i) unanimously approved and declared advisable the original transaction agreement, the transactions contemplated by the original transaction agreement and the scheme of arrangement (including the execution, delivery and performance of the original transaction agreement and the consummation of the transactions contemplated by the original transaction agreement and the scheme of arrangement); (ii) declared that it was in the best interests of the Company’s shareholders that the Company enter into the original transaction agreement and consummate the transactions contemplated thereby and the scheme of arrangement on the terms and subject to the conditions set forth in the original transaction agreement; (iii) directed that an application be made to the Court pursuant to the scheme of arrangement; and (iv) resolved to recommend that the Company’s shareholders vote in favor of all resolutions comprising the Company shareholder approval at duly held meetings of such shareholders for such purposes.

On January 28, 2020, before commencement of trading, the Company and BorgWarner executed and delivered the original transaction agreement and the related transaction documents. Following the execution of the original transaction agreement, prior to the commencement of trading on the NYSE later that morning, the Company and BorgWarner issued a joint press release announcing the execution of the original transaction agreement.

On March 11, 2020, the World Health Organization designated the COVID-19 outbreak as a global pandemic. The COVID-19 pandemic continues to cause significant and unprecedented disruption in the global economy including, among other things, with respect to manufacturing, supply chains and consumer spending. Such disruption, along with the effect of governmental regulations imposed in response to the COVID-19 pandemic, has resulted in temporary closures of manufacturing facilities for some of the Company’s largest OEM customers and significant declines in vehicle production.

On March 20, 2020, the Board held a telephonic meeting with Company management and representatives of Goldman Sachs and Kirkland participating. At the meeting, the Board discussed the current and potential future impact of the COVID-19 pandemic on the Company’s business, operations and financial condition. Among other things, the Board discussed the need to further amend the credit agreement to provide financial covenant relief to the Company and the advisability of drawing the full $500 million available under the Company’s revolving credit facility (the “Revolver Draw”) in order to weather the market conditions and uncertainties caused by the COVID-19 pandemic. After discussion, the Board determined that it was in the best interests of the Company and its shareholders to both further amend the credit agreement and to effect the Revolver Draw as soon as possible. Because the Revolver Draw would require BorgWarner’s prior written consent under the original transaction

 

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agreement (such consent not to be unreasonably withheld, conditioned or delayed), the Board instructed management and its advisors to seek BorgWarner’s consent prior to effecting the Revolver Draw. The Company also sought BorgWarner’s consent to the further amendment of the credit agreement.

Later that day, Mr. Dauch contacted Mr. Lissalde requesting BorgWarner’s consent to the proposed Revolver Draw. The Company also shared with BorgWarner an updated financial outlook of the Company for fiscal year 2020 that accounted for the potential impact of the COVID-19 pandemic on the Company’s business.

On March 21, 2020 and March 22, 2020, the chief financial officers of the Company and BorgWarner held discussions regarding the Revolver Draw and the potential terms on which BorgWarner might provide its consent to the Revolver Draw. BorgWarner indicated that it would provide its consent to the Revolver Draw, but only if the Company agreed to repay all but $5 million of the Revolver Draw prior to closing, which was the amount of additional debt permitted to be incurred under the existing terms of the original transaction agreement. Because the Company did not believe it would likely satisfy this requirement given economic conditions, such failure would give BorgWarner the ability to terminate the transaction or bring a damages claim against the Company. On that day, representatives of Simpson Thacher sent representatives of Kirkland a draft amendment and consent agreement (the “amendment”) reflecting this proposal.

On March 23, 2020, the Company proposed to BorgWarner that it would repay a minimum of $100 million of the Revolver Draw prior to closing, and use its best efforts to repay a larger amount. This proposal was rejected by BorgWarner.

From March 23, 2020 until March 28, 2020, representatives of the Company and BorgWarner engaged in numerous discussions regarding the Revolver Draw and the terms on which BorgWarner would be willing to provide its consent to the Revolver Draw. The Company also shared with BorgWarner an updated financial outlook of the Company for fiscal year 2020, which projected a reduction in the Company’s 2020 adjusted EBITDA of between 22% and 62% relative to the January Company Projections and also showed varying levels of revolving debt required by the Company during the second half of 2020. Following receipt of this information, BorgWarner continued to condition its consent on, among other things, the Company repaying at least $450 million of the Revolver Draw prior to closing, which the Company did not believe it would likely be able to satisfy given economic conditions. BorgWarner also proposed, in addition to the commitment to repay at least $450 million of the Revolver Draw prior to closing, a closing condition requiring the Company to satisfy a gross leverage ratio (calculated based on the Company’s gross debt-to-adjusted EBITDA) (the “gross leverage ratio”) set at a level that the Company did not believe it would likely satisfy on the basis of its financial outlook. The Company rejected this proposal.

On March 25, 2020, Moody’s announced a one-notch downgrade of the Company’s corporate family rating from B1 to B2, and of the Company’s senior unsecured rating from B2 to B3, citing the unprecedented effects of the COVID-19 outbreak on the auto sector.

On March 28, 2020, the Company made a final attempt to reach agreement with BorgWarner prior to effecting the Revolver Draw by proposing, among other things, a closing condition that would require the Company to satisfy a net leverage ratio (calculated based on the Company’s net debt-to-adjusted LTM EBITDA, the “net leverage ratio”) not to exceed 10.0 to 1.0, which was at a level that the Company believed it would likely satisfy based on its financial outlook. This proposal was rejected by BorgWarner based on concerns expressed by BorgWarner about the amount of Company debt that could be outstanding at closing, as well as BorgWarner’s concern that the proposed leverage ratio did not adequately protect against potential further declines in the Company’s adjusted EBITDA. As a result of BorgWarner’s rejection of the proposal, the Board believed that BorgWarner was not willing to provide its consent unless it was on terms that imposed undue closing risk to the Company and, accordingly, instructed management to proceed with the Revolver Draw on March 30, 2020 without BorgWarner’s consent.

 

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On March 29, 2020, representatives of BofA Securities distributed a draft amendment to representatives of Goldman Sachs reflecting, among other things, BorgWarner’s proposal of a gross leverage ratio not to exceed 7.0 to 1.0 for the relevant period prior to closing and a limit on the Company’s outstanding revolver borrowings at closing of $62 million. The Company did not believe it would likely satisfy these conditions given economic conditions and its financial outlook. Later that day, representatives of the Company contacted Mr. Lissalde to inform him that the Company intended to proceed with the Revolver Draw on March 30, 2020 without BorgWarner’s consent.

Following the Revolver Draw on March 30, 2020, BorgWarner provided written notice to the Company asserting that the Company had materially breached the original transaction agreement by effecting the Revolver Draw without obtaining BorgWarner’s prior consent and also asserting that, if the alleged breach was not cured within 30 days, BorgWarner would have the right to terminate the original transaction agreement. The Company responded the same day indicating that, among other things, the Company disputed BorgWarner’s breach assertion on the basis that BorgWarner unreasonably withheld and conditioned its consent in material breach of the original transaction agreement. As part of its response letter, the Company reiterated that it would be willing to agree to repay a minimum of $250 million of the Revolver Draw at or prior to closing, which the Company had discussed in prior conversations with BorgWarner.

On March 31, 2020, each of BorgWarner and the Company issued a press release announcing the dispute related to the Revolver Draw.

Between March 31, 2020 and April 20, 2020, representatives of the Company and BorgWarner continued to discuss the Company’s financial outlook. On April 20, 2020, Company management shared with BorgWarner a further updated financial outlook of the Company for fiscal year 2020, reflecting actual financial results for the quarter ended March 31, 2020 and additional refinements related to the potential impact of the COVID-19 pandemic on the Company’s business through the end of fiscal year 2020. Relative to the financial outlook provided in March 2020, this updated financial outlook showed improvement in projected 2020 adjusted EBITDA.

On April 22, 2020, the Board held a telephonic meeting with Company management and representatives of Goldman Sachs and Kirkland participating. At the meeting, management provided an update on its recent discussions with BorgWarner relating to both integration efforts and the dispute, and the Board discussed, among other things, its various options in the event the dispute could not be resolved with BorgWarner within the 30-day cure period applicable to breaches.

On April 28, 2020, the Committee held a telephonic meeting with Company management and representatives of Goldman Sachs and Kirkland participating. At the meeting, the Committee discussed, among other things, the dispute and the expiration later that week of the 30-day cure period. The Committee also discussed, among other things, BorgWarner’s continued interest in the transaction, the Committee’s continued belief in the strategic merits of the transaction and corresponding desire to resolve the dispute, and possible terms that the Company could propose to BorgWarner to attempt to resolve the dispute. After discussion, the Committee determined to make a new proposal to BorgWarner to resolve the dispute that included, among other things, adding closing conditions requiring that the Company’s net leverage ratio would not exceed 9.0 to 1.0 for the relevant period prior to closing, and that the Company would repay at least $250 million of the Revolver Draw prior to closing. Later that day, representatives of Kirkland sent representatives of Simpson Thacher a draft amendment reflecting this proposal.

On April 30, 2020, BorgWarner responded to the Company’s April 28th proposal by, among other things, proposing to amend the exchange ratio from 0.4534 of a BorgWarner share to 0.4062 of a BorgWarner share (implying a reduction in the consideration payable to the Company’s shareholders of approximately 10% relative to the exchange ratio in the original transaction agreement) and proposing closing conditions requiring that (i) the Company’s net leverage ratio not exceed (x) 6.0 to 1.0 if the transaction closes prior to September 30, 2020 and

 

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(y) 7.0 to 1.0 if the transaction closes after September 30, 2020, (ii) the Company’s outstanding revolver borrowings at closing not exceed $250 million, and (iii) the Company’s outstanding revolver borrowings net of its cash balances at closing not exceed $115 million.

On May 1, 2020, the Committee held a telephonic meeting with Company management and representatives of Goldman Sachs and Kirkland participating. At the meeting, representatives of Goldman Sachs reviewed the terms of BorgWarner’s latest proposal and provided preliminary updated financial analyses of the Company. The participants discussed the likelihood of the Company satisfying the additional closing conditions outlined in BorgWarner’s most recent proposal based on the Company’s financial outlook and the various assumptions and risks underlying that outlook. The Committee also discussed the greater-than-expected potential synergies that management believed could be achieved in the transaction based on integration activities to date. Following discussion, the Committee concluded, among other things, that it would recommend to the Board that the Company seek a smaller reduction in the exchange ratio as well as improved terms with respect to the proposed closing conditions.

Later that day, the Board held a telephonic meeting with Company management and representatives of Goldman Sachs and Kirkland participating. Representatives of Goldman Sachs reviewed the principal terms of BorgWarner’s latest proposal and provided preliminary updated financial analyses as shared with the Committee earlier that day. The Board then discussed BorgWarner’s proposal, the greater-than-expected potential synergies that management believed could be achieved in the transaction and the strategic merits of the transaction, including the Board’s continued belief that BorgWarner is an ideal consolidation partner and well-positioned with, among other things, a strong balance sheet to withstand the potential impacts of the COVID-19 pandemic. Following discussion, the Board determined that BorgWarner’s proposed exchange ratio was not acceptable since, among other things, it failed to adequately compensate the Company’s shareholders for the additional synergies expected to be realized in a combination of the Company and BorgWarner. The Board also discussed the likelihood of satisfying the new closing conditions proposed by BorgWarner and determined to seek a higher net leverage ratio and other improved terms. The Board then authorized the Committee to negotiate the terms of the amendment within specified ranges approved by the Board.

From May 1, 2020 through May 5, 2020, at the direction of the Committee, representatives of the Company and representatives of BorgWarner had several discussions regarding the terms of the amendment. During that period, Company management shared updated financial projections for the Company for fiscal years 2020 through 2023 (the “Updated Company Projections”) with representatives of Goldman Sachs, BorgWarner and BofA Securities, and BorgWarner’s management shared updated financial projections for BorgWarner for fiscal years 2020 through 2024 with representatives of the Company, Goldman Sachs and BofA Securities. Additional information pertaining to the Updated Company Projections is set forth in the section of this proxy statement captioned “—Delphi Technologies Unaudited Prospective Financial Information.”

On May 5, 2020, BorgWarner and the Company reached agreement (subject to final Board approval) on terms to resolve the dispute, which included the following (among other terms): (i) an exchange ratio of 0.4307 BorgWarner shares for each Company share (implying a reduction in the consideration payable to Company shareholders of approximately 5% relative to the exchange ratio contained in the original transaction agreement), and (ii) the following additional closing conditions: (A) that the Company’s net leverage ratio not exceed (x) 6.5 to 1.0 if closing occurs on or before September 30, 2020, and (y) 7.5 to 1.0 if closing occurs on or after October 1, 2020; (B) that on the date immediately prior to closing, the Company’s outstanding revolver borrowings do not exceed $225 million; and (C) that on the date immediately prior to the closing, the Company’s outstanding revolver borrowings net of its cash balances do not exceed $115 million. The amendment also contained, among other things, BorgWarner’s consent to the Revolver Draw.

On May 6, 2020, the Board held a telephonic meeting with Company management and representatives of Goldman Sachs and Kirkland participating. Mr. Haffner and representatives of Kirkland provided an update on the discussions with representatives of BorgWarner and its advisors and reviewed the principal terms of the

 

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proposed amendment. Representatives of Goldman Sachs next reviewed Goldman Sachs’ financial analyses of the Company based on, among other things, the Updated Company Projections. Representatives of Goldman Sachs then rendered Goldman Sachs’ oral opinion, subsequently confirmed in writing, that, as of the date of such opinion and based upon and subject to the factors and assumptions set forth therein, Goldman Sachs was of the opinion that the exchange ratio of 0.4307 BorgWarner shares to be issued in exchange for each Company share pursuant to the transaction agreement (as amended by the amendment) was fair, from a financial point of view, to the holders (other than BorgWarner and its affiliates) of Company shares. Additional information pertaining to the opinion of Goldman Sachs is set forth in the section of this proxy statement captioned “—Opinion of Goldman Sachs.”

The Board further discussed the proposed amendment and various reasons and factors that members of the Board considered in forming their view that the Company’s entry into the amendment was advisable and in the best interests of the Company and its shareholders. The Board noted, among other things, its continued belief in the strategic benefits of the transaction, the greater-than-expected potential synergies that could be realized in the combination, the opportunity for Company shareholders to participate in the potential value creation of the combination, and the strength of BorgWarner’s balance sheet and the ability of the combined company to better weather the potential impacts of the COVID-19 pandemic. The Board also considered various risks and challenges facing the Company if it did not enter into the amendment, including, among other things: (i) the macroeconomic challenges that the Company continued to face since signing the original transaction agreement, (ii) risks related to the Company not completing the transaction, including its ability to preserve sufficient liquidity and successfully execute its standalone plan in the wake of the COVID-19 pandemic, and (iii) in the event the parties litigated the breach dispute, the uncertainty of the outcome and potentially adverse impact that an unfavorable court ruling may have on the Company. Considering the strategic benefits of the transaction and the various risks and challenges facing the Company, members of the Board determined that the Company’s entry into the amendment was in the best interests of the Company and its shareholders. The Board (which, for the avoidance of doubt, did not include the presence, participation or recommendation of Messrs. Manganello and Adams) then, taking into account the foregoing and its previous meetings and discussions, among other things: (1) unanimously approved and declared advisable the amendment, (2) declared that it was in the best interests of the Company’s shareholders that the Company enter into the amendment and consummate the transactions, as amended by the amendment, and (3) resolved to recommend that the Company’s shareholders vote in favor of all resolutions comprising the Company shareholder approval at a duly held meeting of the shareholders for that purpose. Additional information pertaining to the recommendation of the Board is set forth in the section of this proxy statement captioned “—Recommendation of the Board and Reasons for the Transaction.”

Later that morning, before commencement of trading on the NYSE, the Company and BorgWarner executed and delivered the amendment and issued a joint press release announcing their entry into the amendment. Also that day, the Company announced its financial results for the quarter ended March 31, 2020 and its entry into a second amendment to the credit agreement which, among other things, provided financial covenant relief to the Company for the remainder of 2020 and 2021.

Recommendation of the Board and Reasons for the Transaction

After careful consideration, the Board has (i) unanimously approved and declared advisable the transaction agreement, the transactions contemplated by the transaction agreement, and the scheme (including the execution, delivery and performance of the transaction agreement and the consummation of such transactions and the scheme) and (ii) declared that it was in the best interests of the Company’s shareholders that the Company enter into the transaction agreement and consummate the transactions contemplated thereby, including the scheme, on the terms and subject to the conditions set forth in the transaction agreement. For purposes of the remainder of this section, each reference to the Board (or any meeting thereof) is intended to refer to the Board (or such meeting) without any participation by Messrs. Manganello and Adams. The Board unanimously recommends that Company shareholders vote in favor of the Scheme Proposal at the Court Meeting and the Company Shareholder Proposals at the extraordinary general meeting.

 

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In evaluating the transaction agreement and the transaction and reaching its decision to approve the transaction agreement and the transaction, the Board, as described in the prior section entitled “The Transaction—Background of the Transaction”, consulted with the Company’s management, and advisors, considered the business, assets and liabilities, results of operations, financial performance, strategic direction and prospects of the Company, and weighed numerous other factors, including the perceived benefits and the potential risks of the transaction. The Board concluded that the transaction was in the best interests of the Company and its shareholders.

The Board considered various factors that it believes support its determination and recommendation, including the following (not necessarily in order of relative importance):

Aggregate Value and Composition of the Consideration

 

•

the fact that the exchange ratio of 0.4307 represented the following:

 

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an implied value per Company share of $16.52 based on the closing price of BorgWarner shares as of January 27, 2020 (the trading day immediately prior to the date of the announcement of the original transaction agreement), which represented a premium of 69% to the closing price on January 27, 2020 (the last trading day immediately prior to the announcement of the original transaction agreement), and a premium of 45% to the volume weighted average price (the “VWAP”) of Company shares during the one calendar month period ended January 27, 2020; and

 

•

an implied value per Company share of $11.64 based on the closing price of BorgWarner shares as of May 4, 2020 (two trading days immediately prior to the announcement of the amendment), which represented a premium of 23% to the closing price on May 4, 2020, and a premium of 39% to the VWAP of Company shares during the one calendar month period ended May 4, 2020;

 

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the Board’s belief that the value to be received by Company shareholders under the transaction reflected a higher value than would be achieved under the Company’s standalone plan;

 

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that the fixed exchange ratio provides certainty to the Company’s shareholders as to their pro forma ownership of approximately 15% of BorgWarner following completion of the transaction and represented a reduction of only 1% from the pro forma ownership implied by the exchange ratio under the original transaction agreement;

 

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the fact that the exchange ratio included in the transaction agreement provides for a fixed number of BorgWarner shares, which offers Company shareholders the opportunity to benefit from any increase in the trading price of BorgWarner common stock before the closing of the transaction;

 

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that the share consideration offers the Company’s shareholders the opportunity to participate in the potential value creation of the combined company (including any future appreciation in the value of BorgWarner’s common stock), as well as any additional premium that may be realized in the event the combined company is sold to a third party in the future;

 

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the Board’s belief that the combined company has the ability to provide strong returns to shareholders over the long-term based on projected growth in free cash flow; and

 

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the fact that Company shareholders will be able to either retain the BorgWarner shares to be received in the transaction or, given the expected liquidity of the combined company’s stock, at their option, dispose of that stock;

Synergies and Strategic Considerations

 

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the Board’s belief that the transaction would maximize shareholder value over the long term as compared to other strategic alternatives, including the Company’s standalone plan and other possible transactions considered with other parties;

 

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•

the Board’s belief that the transaction will result in a leading pioneering propulsion technologies company with enhanced scale and capabilities that will enable it to better address various execution risks and uncertainties and withstand industry challenges and macroeconomic headwinds;

 

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that the Company’s shareholders, as shareholders of the combined company, will have the potential to benefit from improved profitability through various revenue and cost synergies;

 

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the Board’s belief that the combined company will have a diversified growth profile, broad geographic reach and a more comprehensive portfolio of leading products, which is expected to include a suite of integrated and standalone offerings of power electronic products (including high voltage inverters, converters, on board chargers and battery management systems) that can be partnered with electric motors and mechanical components as well as capabilities (including software, systems integration and thermal management) that are expected to allow the combined company to broadly participate in both hybrid and electric vehicles;

 

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the Board’s belief that the combined company’s business will have an enhanced financial profile and be better positioned to withstand the potential impacts of the COVID-19 pandemic and challenges facing the automotive industry with a stronger balance sheet, stronger credit ratings, expected greater free cash flow and enhanced liquidity as compared with the Company on a standalone basis, as well as the potential capital markets benefits afforded to a larger public company;

 

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the Board’s belief that the combined company will be able to achieve substantial synergies and be better positioned to execute the Company’s restructuring plan, meaningfully accelerate growth initiatives and pursue additional investment and restructuring opportunities;

 

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the cultural alignment between the Company and BorgWarner, including shared values and commitment to respect, integrity, excellence, responsibility and teamwork;

 

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historical information concerning the Company and BorgWarner’s respective businesses, financial condition, results of operations, earnings, trading prices, management, competitive positions and prospects on a stand-alone basis and forecasted combined basis; and

 

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the favorable results of due diligence review of BorgWarner and its business, including with respect to financial, legal, accounting, tax, human resources, real estate and intellectual property matters, conducted by the Company and its advisors;

Standalone Considerations

 

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the challenges presented by the rapidly evolving automotive industry in which the Company competes as a standalone automotive components provider were likely to remain present and persist following the COVID-19 pandemic;

 

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the significant and unprecedented market disruption caused by the COVID-19 pandemic and the evolving and highly uncertain impact it may continue to have on the Company’s business, operations and financial condition;

 

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the Board’s familiarity with and understanding of the Company’s business, results of operations, financial and market position, and its expectations concerning the Company’s future prospects, including the recent and near-term expected declines in the Company’s revenues, earnings, and free cash flows;

 

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macroeconomic challenges resulting in an anticipated slowdown in global vehicle production;

 

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industry headwinds from, among other things, increased competition, technological changes, shorter product life cycles and consumer demand cyclicality;

 

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the faster than expected declines in the Company’s higher-margin diesel fuel injection systems business and commercial vehicles business;

 

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•

longer than anticipated investment cycle for the Company’s power electronics business due to a slower than expected ramp-up of electrification across the light-duty vehicle market;

 

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slowdown in the Asia-Pacific region (primarily China), particularly in the power electronics business;

 

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the adverse impact that global regulatory changes have had on the Company’s business;

 

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the Board’s view that industry trends and customer demands would require increased research and development spend, significant investment and increased scale, each of which presented substantial challenges and risks to the Company’s potential near term and long term success;

 

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the additional investment required to support the Company’s rapidly growing GDi business and maintain the Company’s leading position in the power electronics industry, as well as the implications of a recently terminated key customer program in the Company’s GDi business;

 

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Moody’s downgrade of the Company’s credit ratings and associated increase in the Company’s standalone financing costs; and

 

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the Company’s ability to refinance its term loan before it becomes due in 2022 on favorable terms, or at all, in light of the various challenges facing the Company, including Moody’s downgrade of the Company’s credit ratings;

Key Aspects of the Transaction

 

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the opinion of Goldman Sachs that was received by the Board that, as of May 6, 2020, based upon and subject to the factors and assumptions set forth therein, the exchange ratio pursuant to the transaction agreement was fair, from a financial point of view, to the holders (other than BorgWarner and its affiliates) of Company shares, as further described under the heading “—Opinion of Goldman Sachs” beginning on page 73;

 

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the likelihood that the transaction will be consummated and anticipated timing of closing, based on, among other things:

 

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the closing conditions to the scheme and transaction; and

 

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the commitment made by BorgWarner to cooperate and use reasonable best efforts to obtain governmental and regulatory consents, approvals and clearances, and to divest the Company’s and BorgWarner’s assets or commit to limitations on the businesses of the Company and BorgWarner to the extent provided in the transaction agreement, as discussed further under “—Regulatory Approvals Required” beginning on page 95;

 

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the fact that the transaction agreement was negotiated at arm’s length between the Company and BorgWarner, with the assistance of their respective advisors and supported by business and legal diligence review;

 

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in the event the parties litigated the breach dispute, the uncertainty of the outcome and potentially adverse impact that an unfavorable court ruling may have on the Company;

 

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consideration of other terms of the transaction agreement, as more fully described in the section of this proxy statement captioned “The Transaction Agreement” beginning on page 105 and the course of the negotiations of such terms, which terms included (not in any relative order of importance):

 

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the ability of the Company, under certain circumstances, to provide information to and to engage in discussions or negotiations with a third party that makes an unsolicited acquisition proposal, as further described under “The Transaction Agreement—Adverse Recommendation Changes and Agreement Not to Solicit Other Offers” beginning on page 116;

 

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the ability of the Board, in certain circumstances, to terminate the transaction agreement to enter into a superior proposal if the Board determines in good faith that the failure to take such action

 

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would be reasonably likely to constitute a breach of its fiduciary duties under applicable law. Termination of the transaction agreement to enter into an alternative acquisition agreement with respect to a superior proposal is subject to the Company’s payment to BorgWarner of the Termination Fee ($53.5 million), which the Board believes is reasonable in light of the circumstances and not likely to deter any potential interested party from making a competing acquisition proposal;

 

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the ability of the Board, in certain circumstances, to change its recommendation to Company shareholders regarding the transaction (for more information see “The Transaction Agreement—Adverse Recommendation Changes and Agreement Not to Solicit Other Offers”); and

 

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the ability of the Company, if BorgWarner breaches the transaction agreement or fails to complete the transaction when required to do so, to seek specific performance or monetary damages, subject to the terms and conditions in the transaction agreement;

The Board also considered various risks and other countervailing factors related to entering into the transaction agreement, including the following (not necessarily in order of relative importance):

 

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that any gains arising from the receipt of scheme consideration are expected to be taxable to certain Company shareholders for U.S. federal income tax purposes;

 

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that the fixed exchange ratio will not be adjusted to compensate for changes in the price of BorgWarner shares prior to the consummation of the transaction, and the terms of the transaction agreement do not include termination rights triggered by a decrease in the value of BorgWarner shares relative to the value of Company shares (although the Board determined that the exchange ratio was appropriate and the risks acceptable in view of the relative intrinsic values and financial performance of the Company and BorgWarner);

 

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the amount of time it could take to complete the transaction, including the fact that completion of the transaction depends on factors outside of the Company’s control, and that there can be no assurance that the conditions to the transaction will be satisfied even if the scheme is approved by the Company’s shareholders;

 

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the possibility that the transaction might not be consummated and that if the transaction is not consummated, (a) the price of the Company shares would likely decrease since the current market price may reflect a market assumption that the transaction will be consummated, (b) the Company, in certain circumstances, may be required to pay BorgWarner the Termination Fee ($53.5 million), (c) the Company may experience difficulties in obtaining financing or refinancing its existing debt from changed perceptions regarding the Company’s competitive position, management, liquidity or other aspects of its business, (d) the Company may be unable to find a partner willing to engage in a similar transaction on terms as favorable as those set forth in the Company’s agreements with BorgWarner, and (e) Company shareholders would not realize the anticipated benefits of the transaction;

 

•

the terms of the transaction agreement that restrict the Company’s ability to solicit alternative acquisition proposals from third parties and to provide confidential due diligence information to, or engage in discussions with, a third party interested in pursuing an alternative acquisition proposal, as further discussed under “The Transaction Agreement—Adverse Recommendation Changes and Agreement Not to Solicit Other Offers” beginning on page 116;

 

•

the fact that the Company has incurred and will continue to incur significant transaction costs and expenses in connection with the transaction, regardless of whether consummated and, if the transaction is not consummated, the Company will be required to pay its own expenses associated with the transaction and the fact that the Board, senior management and other employees will have expended significant time and effort and will have experienced significant distractions from their work during the pendency of the transaction;

 

 

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•

the potential for diversion of management attention and employee attrition and the possible effects of the announcement and pendency of the transaction on customers and business relationships;

 

•

the risk of litigation in connection with the transaction, and the fact that litigation in connection with transactions such as the transactions contemplated by the transaction agreement is common and potentially costly;

 

•

the Termination Fee ($53.5 million) which may become payable pursuant to the transaction agreement under certain circumstances, including if the Company terminates the transaction agreement to accept a superior proposal, and the possibility that the amount of the Termination Fee could deter alternative acquisition proposals, as further discussed under “The Transaction Agreement—Termination Fee” beginning on page 126;

 

•

the fact that completion of the transaction would require governmental and regulatory consents, approvals and clearances and the satisfaction of certain other closing conditions, including that the financial conditions have been satisfied, the Company shareholder approval has been obtained, that the scheme has been sanctioned by the Court and that there is no order or legal restraint preventing the consummation of the transaction, which are not entirely within the Company’s control;

 

•

the restrictions on the conduct of the Company’s business prior to the consummation of the transaction and the requirement that the Company conduct its business in the ordinary course, subject to specific limitations, which may delay or prevent the Company from undertaking business opportunities that may arise before the completion of the transaction and that, absent the transaction agreement, the Company might have pursued, as further discussed under “The Transaction Agreement—Covenants and Agreements” beginning on page 111;

 

•

the difficulty and costs inherent in integrating diverse, global businesses and the risk that the cost savings, synergies and other benefits expected to be obtained as a result of the transaction might not be fully or timely realized; and

 

•

the risks of the type and nature described under the sections entitled “Risk Factors” and “Cautionary Statement Regarding Forward-Looking Statements” beginning on pages 26 and 41, respectively.

The Board considered all of these factors and concluded as a whole that the uncertainties, risks and potentially negative factors relevant to the transaction were outweighed by the potential benefits that it expected the Company and its shareholders would achieve as a result of the transaction.

In considering the recommendations of the Board, you should be aware that certain directors and officers of the Company have interests in the proposed transaction that are in addition to, or different from, any interests they might have as shareholders. For more information, see “Interests of Certain Persons in the Transaction” beginning on page 87.

This discussion of the information and factors considered by the Board includes the principal positive and negative factors considered by the Board, but is not intended to be exhaustive and may not include all of the factors considered by the Board. In view of the wide variety of factors considered by the Board in connection with its evaluation of the transaction and the complexity of these matters, the Board did not find it practicable to, and did not attempt to quantify or assign any relative or specific weights to the various factors that it considered in reaching its determination to approve the transaction and to make its recommendations to the Company’s shareholders. Rather, the Board viewed its decisions as being based on the totality of the information presented to it and the factors it considered. In addition, individual members of the Board may have given differing weights to different factors. The explanation of the factors and reasoning set forth above contain forward-looking statements that should be read in conjunction with the section of this proxy statement captioned “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 41.

 

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Opinion of Goldman Sachs

On May 6, 2020, at a meeting of the Board, Goldman Sachs rendered its oral opinion, subsequently confirmed in writing, that, as of the date of the written opinion and based upon and subject to the factors and assumptions set forth therein, the exchange ratio pursuant to the transaction agreement (as amended by the amendment) was fair, from a financial point of view, to the holders (other than BorgWarner and its affiliates) of Company shares.

The full text of the written opinion of Goldman Sachs, dated May 6, 2020, which sets forth assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as Annex C. Goldman Sachs provided advisory services and its opinion for the information and assistance of the Board in connection with its consideration of the transaction. The Goldman Sachs opinion does not constitute a recommendation as to how any holder of Company shares should vote with respect to the scheme of arrangement or any other matter.

In connection with rendering the opinion described above and performing its related financial analyses, Goldman Sachs reviewed, among other things:

 

•

the original transaction agreement;

 

•

the amendment;

 

•

annual reports to shareholders and Annual Reports on Form 10-K of Delphi Technologies for the three years ended December 31, 2019;

 

•

the registration statement on Form 10-12B of Delphi Jersey Holdings PLC, dated December 29, 2017, as amended, relating to the initial public offering of Company shares;

 

•

annual reports to stockholders and Annual Reports on Form 10-K of BorgWarner for the five years ended December 31, 2019;

 

•

certain interim reports to shareholders and stockholders (as applicable) and Quarterly Reports on Form 10-Q of Delphi Technologies and BorgWarner;

 

•

certain other communications from Delphi Technologies and BorgWarner to their shareholders and stockholders, respectively;

 

•

certain publicly available research analyst reports for Delphi Technologies and BorgWarner; and

 

•

certain updated internal financial analyses and forecasts for Delphi Technologies prepared by its management, and for BorgWarner prepared by its management and certain updated financial analyses and forecasts for BorgWarner pro forma for the consummation of the transaction prepared by the management of Delphi Technologies, in each case, as approved for Goldman Sachs’ use by Delphi Technologies, which are referred to as the “Forecasts,” and certain updated operating synergies projected by the management of Delphi Technologies to result from the transaction, as approved for Goldman Sachs’ use by Delphi Technologies, which are referred to as the “Synergies.”

Goldman Sachs also held discussions with members of senior managements of Delphi Technologies and BorgWarner regarding their assessment of the strategic rationale for, and the potential benefits of, the transaction and the past and current business operations, financial condition, and future prospects of BorgWarner, and with members of senior management of Delphi Technologies regarding their assessment of the past and current business operations, financial condition and future prospects of Delphi Technologies; reviewed the reported price and trading activity for Company shares and BorgWarner shares; compared certain financial and stock market information for Delphi Technologies and BorgWarner with similar information for certain other companies the securities of which are publicly traded; reviewed the financial terms of certain recent business combinations in the automotive supplier industry and in other industries; and performed such other studies and analyses, and considered such other factors, as it deemed appropriate.

 

 

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For purposes of rendering this opinion, Goldman Sachs, with Delphi Technologies’ consent, relied upon and assumed the accuracy and completeness of all of the financial, legal, regulatory, tax, accounting and other information provided to, discussed with or reviewed by, it, without assuming any responsibility for independent verification thereof. In that regard, Goldman Sachs assumed with Delphi Technologies’ consent that the Forecasts and the Synergies were reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of Delphi Technologies. Goldman Sachs did not make an independent evaluation or appraisal of the assets and liabilities (including any contingent, derivative or other off-balance-sheet assets and liabilities) of Delphi Technologies, BorgWarner or any of their respective subsidiaries and it was not furnished with any such evaluation or appraisal. Goldman Sachs assumed that all governmental, regulatory or other consents and approvals necessary for the consummation of the transaction will be obtained without any adverse effect on Delphi Technologies or BorgWarner or on the expected benefits of the transaction in any way meaningful to its analysis. Goldman Sachs has also assumed that the transaction will be consummated on the terms set forth in the transaction agreement, without the waiver or modification of any term or condition the effect of which would be in any way meaningful to its analysis.

Goldman Sachs’ opinion does not address the underlying business decision of Delphi Technologies to engage in the transaction or the relative merits of the transaction as compared to any strategic alternatives that may be available to Delphi Technologies; nor does it address any legal, regulatory, tax or accounting matters. Goldman Sachs was not requested to solicit, and did not solicit, interest from other parties with respect to the acquisition of, or other business combination with, Delphi Technologies or any other alternative transaction. Goldman Sachs’ opinion addresses only the fairness from a financial point of view, as of the date of the opinion, to the holders of Company shares (other than BorgWarner and its affiliates) of the exchange ratio pursuant to the transaction agreement. Goldman Sachs’ opinion does not express any view on, and does not address, any other term or aspect of the transaction agreement or the transaction or any term or aspect of any other agreement or instrument contemplated by the transaction agreement or entered into or amended in connection with the transaction, including the fairness of the transaction to, or any consideration received in connection therewith, by the holders of any other class of securities, creditors, or other constituencies of Delphi Technologies; nor as to the fairness of the amount or nature of any compensation to be paid or payable to any of the officers, directors or employees of Delphi Technologies, or any class of such persons in connection with the transaction, whether relative to the exchange ratio pursuant to the transaction agreement or otherwise. Goldman Sachs’ opinion was necessarily based on economic, monetary, market and other conditions as in effect on, and the information made available to it as of, the date of the opinion and Goldman Sachs assumed no responsibility for updating, revising or reaffirming its opinion based on circumstances, developments or events occurring after the date of its opinion. In addition, Goldman Sachs does not express any opinion as to the prices at which BorgWarner shares or Delphi Technologies shares will trade at any time, as to the potential effects of volatility in the credit, financial and stock markets on Delphi Technologies or BorgWarner or the transaction, or as to the impact of the transaction on the solvency or viability of Delphi Technologies or BorgWarner or the ability of Delphi Technologies or BorgWarner to pay their respective obligations when they come due. Goldman Sachs’ opinion was approved by a fairness committee of Goldman Sachs.

The following is a summary of the material financial analyses delivered by Goldman Sachs to the Board in connection with rendering the opinion described above. The following summary, however, does not purport to be a complete description of the financial analyses performed by Goldman Sachs, nor does the order of analyses described represent relative importance or weight given to those analyses by Goldman Sachs. Some of the summaries of the financial analyses include information presented in tabular format. The tables must be read together with the full text of each summary and are alone not a complete description of Goldman Sachs’ financial analyses. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data as it existed on or before May 4, 2020, the next to last trading day before the date of the amendment (which we refer to for the purposes of this section of the proxy statement as the “last trading date”), and is not necessarily indicative of current market conditions. The execution of the original transaction agreement was publicly announced on January 28, 2020.

 

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Financial Analyses of Delphi Technologies

Historical Stock Trading Analysis

Goldman Sachs calculated the implied consideration per Company share by multiplying the exchange ratio by the closing price per BorgWarner share on the last trading date, and analyzed the $11.64 implied consideration per Company share represented by the exchange ratio in relation to (i) the closing price of Company shares on the last trading date, (ii) the VWAP of Company shares during the one calendar month period ended on the last trading date, (iii) the VWAP of Company shares during the three calendar month period ended on the last trading date, (iv) the lowest intra-day price of Company shares over the 52-week period ended on the last trading date, (v) the highest intra-day price of Company shares over the 52-week period ended on the last trading date, and (vi) the average analyst price target as of the last trading date.

This analysis indicated that the $11.64 implied consideration per Company share represented as of the last trading date:

 

•

a premium of 23% to the closing price of $9.49;

 

•

a discount of 5% to the implied purchase price based on the 0.4534 exchange ratio (reflected in the original transaction agreement from January 28, 2020);

 

•

a premium of 39% to the one calendar month VWAP of $8.35;

 

•

a premium of 8% to the three calendar month VWAP of $10.80;

 

•

a premium of 116% to the lowest intra-day price of $5.39 over the prior 52-week period;

 

•

a discount of 47% to the highest intra-day price of $22.08 over the prior 52-week period; and

 

•

a premium of 25% to the average analyst target price of $9.28

Illustrative Discounted Cash Flow Analysis

Using the Forecasts, Goldman Sachs performed an illustrative discounted cash flow analysis on Delphi Technologies. Using discount rates ranging from 8.00% to 9.00%, reflecting estimates of Delphi Technologies’ weighted average cost of capital, Goldman Sachs discounted to present value as of March 31, 2020 (i) estimates of unlevered free cash flow for Delphi Technologies for the last three quarters of 2020 and the years 2021 through 2023 as reflected in the Forecasts and (ii) a range of illustrative terminal values for Delphi Technologies, which were calculated by applying an illustrative terminal value to earnings before interest, taxes, depreciation and amortization (“EBITDA”) multiple range of 4.0x to 5.5x to estimated terminal year EBITDA for Delphi Technologies. Goldman Sachs derived such discount rates by application of the Capital Asset Pricing Model, which requires certain company-specific inputs, including the company’s target capital structure weightings, the cost of long-term debt, future applicable marginal cash tax rate and a beta for the company, as well as certain financial metrics for the United States financial markets generally. The illustrative terminal value to EBITDA multiple range for Delphi Technologies was derived by Goldman Sachs using its professional judgment and experience, taking into account, among other things, EBITDA multiples implied by the Company share trading prices over certain periods (and estimates of last-12-months (“LTM”) EBITDA as reported by IBES).

Goldman Sachs derived a range of illustrative enterprise values (“EVs”) for Delphi Technologies by adding the range of present values it derived above. Goldman Sachs then subtracted from the range of illustrative enterprise values it derived for Delphi Technologies, the net debt of $1,373 million, book value of minority interests of $133 million, post-tax unfunded pension liabilities of $289 million, and added investments in affiliates for Delphi Technologies of $41 million, each as of March 31, 2020 and as provided by the management of Delphi Technologies and approved for Goldman Sachs’ use by the management of Delphi Technologies, to derive a range of illustrative equity values for Delphi Technologies. Goldman Sachs then divided the range of illustrative equity values it derived by the number of fully diluted outstanding Company shares of 89.1 million as of April 28, 2020, as

 

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provided by the management of Delphi Technologies and approved for Goldman Sachs’ use by the management of Delphi Technologies, to derive a range of illustrative values per Company share, rounded to the nearest $0.25, ranging from $10.75 to $20.00.

Illustrative Present Value of Future Share Price Analysis

Goldman Sachs performed an illustrative analysis of the implied present value of an illustrative future value per Company share, which is designed to provide an indication of the present value of a theoretical future value of a company’s equity as a function of such company’s trading multiples. For this analysis, Goldman Sachs used the Forecasts for each of the fiscal years 2021 to 2023. Goldman Sachs first calculated the implied enterprise values for Delphi Technologies as of December 31 for each of the fiscal years 2020 to 2022, by applying enterprise value to next twelve months (“NTM”) EBITDA multiples, which are referred to in this section as “NTM EV/EBITDA,” of 4.0x to 5.5x to EBITDA estimates for Delphi Technologies for each of the fiscal years 2021 to 2023 based on the Forecasts. These illustrative multiple estimates were derived by Goldman Sachs using its professional judgment and experience, taking into account current and historical NTM EV/EBITDA multiples for Delphi Technologies and for selected companies (as described below under “—Selected Companies Analysis”). Goldman Sachs then subtracted the amount of Delphi Technologies’ forecasted net debt of $1,485 million, $1,409 million and $1,208 million and book value of minority interests of $133 million, $133 million and $133 million and added investments in affiliates of $41 million, $41 million and $41 million for each of the fiscal years 2020 to 2022, respectively, as of the relevant year-end, each as provided by Delphi Technologies and approved for Goldman Sachs’ use by the management of Delphi Technologies, from the respective implied enterprise values in order to derive a range of illustrative equity values for Delphi Technologies as of December 31 for each of the fiscal years 2020 to 2022. Goldman Sachs then divided the results by the number of projected year-end fully diluted outstanding Company shares of 89.1 million, 90.7 million and 92.2 million for each of the fiscal years 2020 to 2022, respectively, each as provided by the management of Delphi Technologies and approved for Goldman Sachs’ use by the management of Delphi Technologies to derive a range of implied future share prices. Goldman Sachs then discounted the December 31, 2020 to December 31, 2022 implied future share price values back to March 31, 2020 using an illustrative discount rate of 8.9%, reflecting an estimate of Delphi Technologies’ cost of equity. Goldman Sachs derived such discount rate by application of the Capital Asset Pricing Model, which requires certain company-specific inputs, including a beta for the Company, as well as certain financial metrics for the United States financial markets generally. This analysis resulted in a range of implied present values, rounded to the nearest $0.25, of $3.25 to $20.00 per Company share.

Selected Transactions Analysis

Goldman Sachs analyzed certain publicly available information relating to the following selected transactions in the automotive supplier industry since 2014.

For each of the selected transactions where information was publicly available, Goldman Sachs calculated and compared the implied enterprise value to LTM EBITDA multiple, which is referred to in this section as “EV/LTM EBITDA,” of the applicable target company based on the total consideration paid in the transaction as a multiple of the target company’s LTM EBITDA based on publicly available information at the time each such selected transaction was announced. While none of the target companies that participated in the selected transactions are directly comparable to Delphi Technologies, the target companies that participated in the selected transactions are companies with operations that, for the purpose of analysis, may be considered similar to certain of Delphi Technologies’ results, market size and product profile.

 

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The following table presents the results of this analysis:

 

Selected Precedent Transactions
Announcement Date		Acquiror		Target		EV/LTM EBITDA
July 2018		Dana Incorporated		Oerlikon Group			6.7x
April 2018		Tenneco Inc.		Federal-Mogul LLC			7.2x
May 2017		Zhengzhou Coal Mining Machinery Group Co Ltd /China Renaissance Capital Investment		SG Holding			6.7x
November 2016		American Axle & Manufacturing Holdings Inc.		Metaldyne Performance Group Inc.			6.5x
November 2016		KKR & Co Inc.		Calsonic Kansei Corp.			7.6x
June 2016		Valeo		FTE Automotive			8.0x
May 2016		Musashi Seimitsu Industry Co., Ltd.		Hay Holding GmbH			6.9x
March 2016		Yinyi Group		Punch Powertrain			10.0x
August 2015		Johnson Electric Group		Stackpole International			10.6x
July 2015		Magna International Inc.		Getrag Group of Companies			8.8x
July 2015		BorgWarner Inc.		Remy International Inc.			10.1x
January 2015		Bain Capital LLC		TI Automotive			5.8x
July 2014		NN, Inc.		Autocam Corporation			7.6x
Median							7.6x

Based on the results of the foregoing calculations and Goldman Sachs’ analyses of the various transactions and its professional judgment, Goldman Sachs applied a reference range of EV/LTM EBITDA multiples of 6.5x to 8.0x to Delphi Technologies’ LTM EBITDA for the quarter ended March 31, 2020, as provided by the management of Delphi Technologies, and to Delphi Technologies’ LTM EBITDA for 2020E, as reflected in the Forecasts to derive a range of implied enterprise values for Delphi Technologies. Goldman Sachs then subtracted from the range of implied enterprise values the net debt of $1,373 million, book value of minority interests of $133 million, and added investments in affiliates for Delphi Technologies of $41 million for Delphi Technologies, each, as of March 31, 2020, and as provided by the management of Delphi Technologies, to derive a range of illustrative equity values for Delphi Technologies. Goldman Sachs divided the results by the number of fully diluted outstanding Company shares of 89.1 million as of April 28, 2020 as provided by the management of Delphi Technologies, to derive a range of implied values per Company share, rounded to the nearest $0.25, of $18.50 to $26.50 based on the LTM EBITDA for the quarter ended March 31, 2020 and $3.25 to $7.75 based on the LTM EBITDA of 2020E.

Premia Analysis

Goldman Sachs reviewed and analyzed, using publicly available information, the acquisition premia for all-stock acquisition transactions announced during the time period from January 1, 2015 through May 4, 2020 involving a public company based in the United States as the target where the disclosed enterprise values for the transaction were greater than $500 million, excluding the acquisition premium for the transaction as originally announced on January 28, 2020. For the entire period, using publicly available information, Goldman Sachs calculated the median, 25th percentile and 75th percentile premiums of the price paid in the transactions relative to the target’s last undisturbed closing stock price prior to the announcement of the transaction. This analysis indicated a median premium of 11.0% across the period. This analysis also indicated a 25th percentile premium of 1.8% and 75th percentile premium of 21.6% across the period. Using this analysis, Goldman Sachs applied a reference range of illustrative premiums of 11% to 22% to the undisturbed closing price per Company share of $9.49 as of the last trading date, and calculated a range of implied equity values per Company share, rounded to the nearest $0.25, of $10.50 to $11.50.

 

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Financial Analyses of BorgWarner

Illustrative Discounted Cash Flow Analysis

Using the Forecasts, Goldman Sachs performed an illustrative discounted cash flow analysis on BorgWarner. Using discount rates ranging from 6.25% to 7.25%, reflecting estimates of BorgWarner’s weighted average cost of capital, Goldman Sachs discounted to present value as of March 31, 2020 (i) estimates of unlevered free cash flow for BorgWarner for the last three quarters of 2020 and the years 2021 through 2023 as reflected in the Forecasts and (ii) a range of illustrative terminal values for BorgWarner, which were calculated by applying an illustrative terminal value to EBITDA multiple range of 5.0x to 6.5x to estimated terminal year EBITDA for BorgWarner as reflected in the Forecasts. Goldman Sachs derived such discount rates by application of the Capital Asset Pricing Model, which requires certain company-specific inputs, including the company’s target capital structure weightings, the cost of long-term debt, future applicable marginal cash tax rate and a beta for the company, as well as certain financial metrics for the United States financial markets generally. The illustrative terminal value to EBITDA multiple range for BorgWarner was derived by Goldman Sachs using its professional judgment and experience, taking into account, among other things, EBITDA multiples implied by BorgWarner share trading prices over certain periods (and estimates of LTM EBITDA as reported by IBES). Goldman Sachs derived a range of illustrative enterprise values for BorgWarner by adding the range of present values it derived above. Goldman Sachs then subtracted from the range of illustrative enterprise values it derived for BorgWarner the net debt of $1,049 million, book value of minority interests of $140 million, post-tax unfunded pension liabilities of $225 million, and added investments in affiliates for BorgWarner of $261 million, each as of March 31, 2020 and as provided by the management of BorgWarner and approved for Goldman Sachs’ use by the management of Delphi Technologies, to derive a range of illustrative equity values for BorgWarner. Goldman Sachs then divided the range of illustrative equity values it derived by the number of fully diluted outstanding BorgWarner shares of 207.5 million as of March 31, 2020, as provided by the management of BorgWarner and approved for Goldman Sachs’ use by the management of Delphi Technologies, to derive a range of illustrative values per BorgWarner share, rounded to the nearest $0.25, ranging from $39.75 to $52.75.

Illustrative Present Value of Future Share Price Analysis

Goldman Sachs performed an illustrative analysis of the implied present value of an illustrative future value per BorgWarner share, which is designed to provide an indication of the present value of a theoretical future value of a company’s equity as a function of such company’s financial multiples. For this analysis, Goldman Sachs used the Forecasts for each of the fiscal years 2021 to 2023. Goldman Sachs first calculated the implied enterprise values for BorgWarner as of December 31 for each of the fiscal years 2020 to 2022, by applying NTM EV/EBITDA multiples of 5.0x to 6.5x to EBITDA estimates for BorgWarner for each of the fiscal years 2021 to 2023 based on the Forecasts. These illustrative multiple estimates were derived by Goldman Sachs using its professional judgment and experience, taking into account current and historical NTM EV/EBITDA multiples for BorgWarner and for selected companies (as described below under “—Selected Companies Analysis”). Goldman Sachs then subtracted the amount of BorgWarner’s forecasted net debt of $842 million, $857 million and $674 million and book value of minority interests of $140 million, $140 million and $140 million and added investments in affiliates of $261 million, $261 million, and $261 million for each of the fiscal years 2020 to 2022, respectively, as of the relevant year-end, each as provided by BorgWarner and approved for Goldman Sachs’ use by the management of Delphi Technologies, from the respective implied enterprise values in order to derive a range of illustrative equity values for BorgWarner as of December 31 for each of the fiscal years 2020 to 2022. Goldman Sachs then divided the results by the number of projected year-end fully diluted outstanding BorgWarner shares of 202.7 million, 198.7 million and 195.4 million for each of the fiscal years 2020 to 2022, respectively, each as provided by the management of BorgWarner and approved for Goldman Sachs’ use by the management of Delphi Technologies to derive a range of implied future share prices (excluding dividends). Goldman Sachs then discounted the December 31, 2020 to December 31, 2022 implied future share price values (excluding dividends) back to March 31, 2020 using an illustrative discount rate of 8.3%, reflecting an estimate of BorgWarner’s cost of equity to derive a range of implied present value of future share prices (excluding

 

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dividends). Goldman Sachs derived such discount rate by application of the Capital Asset Pricing Model, which requires certain company-specific inputs, including a beta for the company, as well as certain financial metrics for the United States financial markets generally. Goldman Sachs then added the cumulative discounted dividends per share expected to be paid to BorgWarner’s shareholders as of December 31 for each of the fiscal years 2020 to 2022 of $0.49, $1.12 and $1.71, as provided by BorgWarner and approved for Goldman Sachs’ use by the management of Delphi Technologies, to the present value of implied future share price (excluding dividends) for each respective fiscal year, such dividends being discounted back to March 31, 2020 using an illustrative discount rate of 8.3%, reflecting an estimate of BorgWarner’s cost of equity, to derive a range of implied present value of future share prices (including dividends). This analysis resulted in a range of implied present values, rounded to the nearest $0.25, of $32.75 to $52.25 per BorgWarner share.

Selected Companies Analysis

Goldman Sachs reviewed and compared certain financial and stock market information, ratios and public market multiples for Delphi Technologies and BorgWarner to corresponding financial and stock market information, ratios and public market multiples for the following automotive supplier companies (the “selected companies”):

 

•

Key Peers

 

•

Continental AG (“Conti”)

 

•

Denso Corporation (“Denso”)

 

•

Garrett Motion Inc. (“Garrett”)

 

•

Magna International Inc. (“Magna”)

 

•

Valeo (“Valeo”)

 

•

Other Auto Suppliers

 

•

Adient plc (“Adient”)

 

•

American Axle & Manufacturing, Inc. (“American Axle”)

 

•

Dana Incorporated (“Dana”)

 

•

Lear Corporation (“Lear”)

 

•

Meritor, Inc. (“Meritor”)

 

•

Tenneco Inc. (“Tenneco”)

 

•

Schaeffler Technologies AG & Co. KG (“Schaeffler”)

Although none of the selected companies are directly comparable to Delphi Technologies or BorgWarner, the companies included were chosen because they are publicly traded companies with operations that for purposes of analysis may be considered similar to certain operations of Delphi Technologies and BorgWarner.

 

 

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Goldman Sachs calculated and compared various financial multiples and ratios for Delphi Technologies, BorgWarner and the selected companies based on financial and trading data as of the last trading date, information Goldman Sachs obtained from Bloomberg, S&P Capital IQ, Thomson Reuters Eikon, publicly available historical data, the Forecasts, market data, and Institutional Brokers’ Estimate System, or “IBES,” estimates. Goldman Sachs calculated EV/EBITDA multiples for Delphi Technologies, BorgWarner, and the selected companies for 2019A, 2020E and 2021E. The results of these analyses are summarized as follows:

 

Selected Companies   EV/EBITDA(1)

Company

2019A

2020E

2021E

Delphi Technologies (IBES)

4.2x

7.1x

4.9x

Delphi Technologies (Forecasts)(2)

4.5x

8.6x

5.0x

BorgWarner (IBES)

3.9x

5.5x

4.4x

BorgWarner (Forecasts)(2)

3.9x

4.0x

3.4x

Key Peers

Conti

3.5x

4.3x

3.2x

Denso

6.2x

4.3x

3.9x

Garrett

3.6x

8.8x

5.6x

Magna

4.1x

7.4x

5.0x

Valeo

3.4x

4.5x

3.4x

Median

3.5x

4.5x

3.9x

Other Auto Suppliers

Adient

4.6x

5.9x

3.4x

American Axle

3.7x

6.4x

5.4x

Dana

3.4x

6.1x

4.3x

Lear

3.6x

5.6x

4.0x

Meritor

3.1x

5.0x

3.8x

Tenneco

3.5x

7.0x

4.6x

Schaeffler

3.5x

3.7x

3.2x

Median

3.5x

5.9x

4.0x

 

(1)	Multiples based on information obtained from Bloomberg, IBES, S&P Capital IQ, Thomson Reuters Eikon and publicly available historical data.

(2)	Multiples based on the Forecasts.

Implied Value of Consideration per Company Share

Illustrative Discounted Cash Flow Analysis

Using the Forecasts, Goldman Sachs performed an illustrative discounted cash flow analysis on the combined company. Using discount rates ranging from 6.25% to 7.25%, reflecting estimates of the weighted average cost of capital for the combined company, Goldman Sachs discounted to present value as of March 31, 2020 (i) estimates of unlevered free cash flow for the combined company for the last three quarters of 2020 and the years 2021 through 2023 as reflected in the Forecasts and taking into account the Synergies and (ii) a range of illustrative terminal values for the combined company, which were calculated by applying an illustrative terminal value to EBITDA multiple range of 5.0x to 6.5x to estimated terminal year EBITDA for the combined company as reflected in the Forecasts and taking into account the Synergies. Goldman Sachs derived such discount rates by application of the Capital Asset Pricing Model, which requires certain company-specific inputs, including the company’s target capital structure weightings, the cost of long-term debt, future applicable marginal cash tax rate and a beta for the combined company, as well as certain financial metrics for the United States financial markets generally. The illustrative terminal value to EBITDA multiple range for the combined company was derived by

 

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Goldman Sachs using its professional judgment and experience, taking into account, among other things, EBITDA multiples implied by BorgWarner share trading prices over certain periods (and estimates of LTM EBITDA as reported by IBES). Goldman Sachs derived a range of illustrative enterprise values for the combined company by adding the range of present values it derived above. Goldman Sachs then subtracted from the range of illustrative enterprise values it derived for the combined company the net debt of $2,465 million, book value of minority interests of $273 million, post-tax unfunded pension liabilities of $514 million, and added investments in affiliates for the combined company of $302 million, each as of March 31, 2020 and as provided by the management of Delphi Technologies and approved for Goldman Sachs’ use by the management of Delphi Technologies, to derive a range of illustrative equity values for the combined company. Goldman Sachs then divided the range of illustrative equity values it derived by the number of fully diluted outstanding shares of the combined company’s common stock of 245.9 million as of March 31, 2020 pro forma for the consummation of the transaction, as provided by the management of BorgWarner and approved for Goldman Sachs’ use by the management of Delphi Technologies, to derive a range of illustrative values per BorgWarner share. Goldman Sachs then multiplied this range by the exchange ratio to yield illustrative values, rounded to the nearest $0.25, ranging from $19.00 to $25.75 for the 0.4307 of a newly issued BorgWarner share to be received for each Company share in the transaction. As described above under “—Financial Analyses of Delphi Technologies—Illustrative Discounted Cash Flow Analysis,” Goldman Sachs calculated a range of illustrative values per Company share for Delphi Technologies on a standalone basis, rounded to the nearest $0.25, of $10.75 to $20.00.

Illustrative Present Value of Future Share Price Analysis

Goldman Sachs performed an illustrative analysis of the implied present value of an illustrative future value per BorgWarner share pro forma for the consummation of the transaction, which is designed to provide an indication of the present value of a theoretical future value of a company’s equity as a function of such company’s financial multiples. For this analysis, Goldman Sachs used the Forecasts for each of the fiscal years 2021 to 2023.

Goldman Sachs first calculated the implied enterprise values for the combined company as of December 31 for each of the fiscal years 2020 to 2022, by applying NTM EV/EBITDA multiples of 5.0x to 6.5x to EBITDA estimates for the combined company for each of the fiscal years 2021 to 2023 based on the Forecasts and taking into account the Synergies. These illustrative multiple estimates were derived by Goldman Sachs using its professional judgment and experience, taking into account current and historical NTM EV/EBITDA multiples for BorgWarner and for selected companies (as described below under “—Selected Companies Analysis”). Goldman Sachs then subtracted the amount of the combined company’s forecasted net debt of $2,497 million, $2,378 million and $1,878 million and book value of minority interests of $273 million, $273 million and $273 million and added investments in affiliates of $302 million, $302 million and $302 million for each of the fiscal years 2020 to 2022, respectively, as of the relevant year-end, each as provided by Delphi Technologies and approved for Goldman Sachs’ use by the management of Delphi Technologies, from the respective implied enterprise values in order to derive a range of illustrative equity values for the combined company as of December 31 for each of the fiscal years 2020 to 2022. Goldman Sachs then divided the results by the number of projected year-end fully diluted outstanding shares of the combined company’s common stock of 240.9 million, 237.3 million and 234.5 million for each of the fiscal years 2020 to 2022, respectively, each as provided by the management of BorgWarner and approved for Goldman Sachs’ use by the management of Delphi Technologies to derive a range of implied future share prices (excluding dividends). Goldman Sachs then discounted the December 31, 2020 to December 31, 2022 implied future share price values (excluding dividends) back to March 31, 2020 using an illustrative discount rate of 8.3%, reflecting an estimate of the combined company’s cost of equity to derive a range of implied present value of future share prices (excluding dividends). Goldman Sachs derived such discount rate by application of the Capital Asset Pricing Model, which requires certain company-specific inputs, including a beta for the company, as well as certain financial metrics for the United States financial markets generally. Goldman Sachs then added the cumulative discounted dividends per share of the combined company’s common stock expected to be paid to the combined company’s shareholders as of December 31 for each of the fiscal years 2020 to 2022 of $0.49, $1.12 and $1.71, respectively, as provided by BorgWarner and approved for Goldman Sachs’ use by the management of Delphi Technologies, to the present

 

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value of implied future share price (excluding dividends) for each respective fiscal year, such dividends being discounted back to March 31, 2020 using an illustrative discount rate of 8.3%, reflecting an estimate of the combined company’s cost of equity, to derive a range of illustrative present value of future share prices (including dividends) per share of the combined company’s common stock pro forma for the consummation of the transaction. Goldman Sachs then multiplied this range by the exchange ratio to yield illustrative present values, rounded to the nearest $0.25, ranging from $14.00 to $25.50 for the 0.4307 of a newly issued BorgWarner share to be received for each Company share in the transaction. As described above under “—Financial Analyses of Delphi Technologies – Illustrative Present Value of Future Share Price Analysis” Goldman Sachs calculated a range of implied present values per Company share for Delphi Technologies on a standalone basis, rounded to the nearest $0.25, of $3.25 to $20.00.

Illustrative Contribution Analysis

Using the Forecasts and publicly available information, Goldman Sachs analyzed the implied contributions of Delphi Technologies and BorgWarner to the combined company on an implied levered equity basis, based on estimated future operating and financial information of each company on a stand-alone basis, including estimated revenue, EBITDA, unlevered free cash flow, discounted cash flow and market capitalizations of Delphi Technologies and BorgWarner as of the last trading date. For the purposes of performing this analysis on an implied levered equity basis, Goldman Sachs analyzed the relative size of contribution of each of Delphi Technologies and BorgWarner based on illustrative levered equity values of Delphi Technologies and BorgWarner based on the financial metrics of each company for each of the calendar years 2019 through 2021. Goldman Sachs derived the implied levered equity values by combining EVs for Delphi Technologies and BorgWarner, calculating implied blended EV multiples on the combined financial metrics of Delphi Technologies and BorgWarner, applying those blended multiples to each of Delphi Technologies’ and BorgWarner’s standalone financial metrics to calculate implied EVs for each of Delphi Technologies and BorgWarner and then subtracting the respective net debt, book value of minority interests and adding the respective investments in affiliates, each as of March 31, 2020 and as provided by the management of Delphi Technologies and approved for Goldman Sachs’ use by the management of Delphi Technologies, to derive a levered equity value for each of Delphi Technologies and BorgWarner. Based on the relative sizes of contribution calculated, Goldman Sachs also calculated an implied illustrative exchange ratio for each such relative size of contribution.

The following table presents the results of this analysis:

 

		Implied Equity Contribution (Levered)								Implied Exchange Ratio
		Delphi Technologies				BorgWarner
Revenue
2019A			18	%			82	%			0.53x
2020E			16	%			84	%			0.45x
2021E			13	%			87	%			0.36x
EBITDA
2019A			10	%			90	%			0.25x
2020E			2	%			98	%			0.04x
2021E			10	%			90	%			0.25x
Unlevered Free Cash Flow
2019A			0	%			100	%			NM	(1)
2020E			0	%			100	%			NM	(1)
2021E			27	%			73	%			0.88x
Market Capitalization			13	%			87	%			0.35x
Discounted Cash Flow
Delphi Technologies top DCF range/BorgWarner bottom DCF range			18	%			82	%			0.50x
Delphi Technologies bottom DCF range/BorgWarner top DCF range			8	%			92	%			0.20x

 

(1)	NM means not meaningful.

 

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General

The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. Selecting portions of the analyses or of the summary set forth above, without considering the analyses as a whole, could create an incomplete view of the processes underlying Goldman Sachs’ opinion. In arriving at its fairness determination, Goldman Sachs considered the results of all of its analyses and did not attribute any particular weight to any factor or analysis considered by it. Rather, Goldman Sachs made its determination as to fairness on the basis of its experience and professional judgment after considering the results of all of its analyses. No company or transaction used in the above analyses as a comparison is directly comparable to Delphi Technologies or BorgWarner or the contemplated transaction.

Goldman Sachs prepared these analyses for purposes of Goldman Sachs’ providing its opinion to the Board that, as of May 6, 2020, and based upon and subject to the factors and assumptions therein, the exchange ratio pursuant to the transaction agreement was fair, from a financial point of view, to the holders (other than BorgWarner and its affiliates) of Company shares. These analyses do not purport to be appraisals nor do they necessarily reflect the prices at which businesses or securities actually may be sold. Analyses based upon Forecasts of future results are not necessarily indicative of actual future results, which may be significantly more or less favorable than suggested by these analyses. Because these analyses are inherently subject to uncertainty, being based upon numerous factors or events beyond the control of the parties or their respective advisors, none of Delphi Technologies, BorgWarner, Goldman Sachs or any other person assumes responsibility if future results are materially different from those forecast.

The exchange ratio was determined through arm’s-length negotiations between Delphi Technologies and BorgWarner and was approved by the Board. Goldman Sachs provided advice to Delphi Technologies during these negotiations. Goldman Sachs did not, however, recommend any specific exchange ratio to Delphi Technologies or its Board or that any specific exchange ratio constituted the only appropriate exchange ratio for the transaction.

As described above, Goldman Sachs’ opinion to the Board was one of many factors taken into consideration by the Board in making its determination to approve the transaction. The foregoing summary does not purport to be a complete description of the analyses performed by Goldman Sachs in connection with the fairness opinion and is qualified in its entirety by reference to the written opinion of Goldman Sachs attached as Annex C.

Goldman Sachs and its affiliates are engaged in advisory, underwriting and financing, principal investing, sales and trading, research, investment management and other financial and non-financial activities and services for various persons and entities. Goldman Sachs and its affiliates and employees, and funds or other entities they manage or in which they invest or have other economic interests or with which they co-invest, may at any time purchase, sell, hold or vote long or short positions and investments in securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments of Delphi Technologies, BorgWarner, any of their respective affiliates and third parties, or any currency or commodity that may be involved in the transaction. Goldman Sachs acted as financial advisor to Delphi Technologies in connection with, and participated in certain of the negotiations leading to, the transaction. Goldman Sachs has provided certain financial advisory and/or underwriting services to Delphi Technologies and/or its affiliates from time to time. However, during the two year period ended May 6, 2020, the Investment Banking Division of Goldman Sachs has not been engaged by Delphi Technologies or its affiliates to provide financial advisory or underwriting services for which Goldman Sachs has recognized compensation. During the two year period ended May 6, 2020, the Investment Banking Division of Goldman Sachs has not been engaged by BorgWarner or its affiliates to provide financial advisory or underwriting services for which Goldman Sachs has recognized compensation. Goldman Sachs may also in the future provide financial advisory and/or underwriting services to Delphi Technologies, BorgWarner and their respective affiliates for which the Investment Banking Division of Goldman Sachs may receive compensation.

 

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The Board selected Goldman Sachs as its financial advisor because it is an internationally recognized investment banking firm that has substantial experience in transactions similar to the transaction. Pursuant to a letter agreement dated October 16, 2019 Delphi Technologies engaged Goldman Sachs to act as its financial advisor in connection with the transaction. The engagement letter between Delphi Technologies and Goldman Sachs provides for a transaction fee that is estimated, based on the information available as of the date of the announcement of the transaction, at approximately $30 million, $5 million of which became payable at the announcement of the transaction, and the remainder of which is contingent upon consummation of the transaction. In addition, Delphi Technologies has agreed to reimburse Goldman Sachs for certain of its expenses, including attorneys’ fees and disbursements, and to indemnify Goldman Sachs and related persons against various liabilities, including certain liabilities under the federal securities laws.

Delphi Technologies Unaudited Prospective Financial Information

Delphi Technologies’ management does not as a matter of course make public financial projections as to future performance, revenues, earnings or other results beyond the current fiscal year due to, among other reasons, the uncertainty, unpredictability and subjectivity of the underlying assumptions and estimates. Delphi Technologies is especially reluctant to disclose financial projections for extended periods due to the increasing uncertainty, unpredictability and subjectivity of such assumptions and estimates when applied to time periods further in the future. As a result, Delphi Technologies does not endorse the unaudited prospective financial information as a reliable indication of future results. However, in connection with the transaction, Delphi Technologies’ management prepared the following financial projections. The inclusion of the unaudited prospective financial information herein will not be deemed an admission or representation by BorgWarner or Delphi Technologies that they are viewed by BorgWarner or Delphi Technologies as material information of BorgWarner (either before or after the transaction) or Delphi Technologies.

In connection with evaluating a potential transaction with BorgWarner, Delphi Technologies management prepared the January Company Projections for use prior to signing the original transaction agreement. In connection with the Board’s consideration of the amendment, Delphi Technologies management updated such projections to reflect, among other things, Delphi Technologies’ actual financial results through the quarter ended March 31, 2020 and the potential impact of the COVID-19 pandemic on Delphi Technologies’ business (the “Updated Company Projections”). The January Company Projections and Updated Company Projections are collectively referred to as the “Company Projections.” The Company Projections were provided to (i) the Board to consider in evaluating the transaction (as amended by the amendment) and making its final determinations with respect thereto and BorgWarner in connection with its due diligence review of Delphi Technologies. The Updated Company Projections were provided to representatives of Goldman Sachs for use in connection with its financial analyses and opinion issued on May 6, 2020, as described in the sections of this proxy statement entitled “—Background of the Transaction” and “—Opinion of Goldman Sachs” beginning on pages 51 and 73, respectively.

The inclusion of the Company Projections in this proxy statement should not be regarded as an indication that any of Delphi Technologies or its affiliates, advisors or representatives considered the Company Projections to be predictive of actual future events, and the Company Projections should not be relied upon as such. This summary of the Company Projections is not being included in this proxy statement to influence your decision whether to vote in favor of any proposal. Any forward-looking statement speaks only as of the date on which it is made, and none of Delphi Technologies or its affiliates, advisors, officers, directors, partners or representatives can give you any assurance that actual results will not differ from the Company Projections, and none of them undertake any obligation or intend to update or otherwise revise or reconcile the Company Projections to reflect circumstances existing after the date the Company Projections were generated or to reflect the occurrence of future events.

Delphi Technologies advised the recipients of the Company Projections that they are subjective in many respects. While presented with numerical specificity, the Company Projections were based on numerous variables and assumptions that necessarily involve judgments with respect to, among other things future economic, competitive, regulatory and financial market conditions, all of which are difficult or impossible to predict and many of which are beyond the control of Delphi Technologies. Important factors that may affect actual results and cause the Company

 

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Projections to not be achieved include, but are not limited to, risks and uncertainties relating to Delphi Technologies’ business (including its ability to achieve strategic goals, objectives and targets over applicable periods), industry performance, the regulatory and competitive environment, changes in technology, general business and economic conditions, including the impact of the COVID-19 pandemic, and other factors described or referenced under “Risk Factors” and “Cautionary Statement Regarding Forward-Looking Statements” beginning on pages 26 and 41, respectively.

Various assumptions underlying the Company Projections may not prove to have been, or may no longer be, accurate. The Company Projections may not be realized, and actual results may be significantly higher or lower than projected in the Company Projections. The Company Projections summarized below are on a standalone basis and do not reflect the consummation of the transaction. The Company Projections also reflect assumptions as to certain business strategies or plans that are subject to change. The Company Projections do not take into account any circumstances or events occurring after the date they were prepared. The Company Projections cover multiple years, and such information by its nature becomes less predictive with each successive year. As a result, the inclusion of the Company Projections in this proxy statement should not be relied on as necessarily predictive of actual future events. For all of these reasons, the Company Projections, and the assumptions upon which they are based, (i) are not guarantees of future results, (ii) are inherently speculative and (iii) are subject to a number of risks and uncertainties. As a result, actual results may differ materially (and will differ materially if the transaction and the other transactions contemplated by the transaction agreement are completed) from those contained in the Company Projections. Accordingly, there can be no assurance that the Company Projections will be realized.

The Company Projections were prepared for internal use and to assist the Board with its consideration and evaluation of the transaction (as amended by the amendment), and although they were prepared on an accounting basis consistent with Delphi Technologies’ financial statements, they were not prepared with a view toward public disclosure or toward compliance with published guidelines of the SEC or the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information. Neither Ernst & Young LLP, Delphi Technologies’ independent auditor (“E&Y”) nor any other independent accountants has audited, reviewed, examined, compiled or applied agreed-upon procedures with respect to the Company Projections contained herein, and accordingly, neither E&Y nor any other independent accountant expresses an opinion or any other form of assurance with respect hereto. Neither Delphi Technologies nor its financial advisor, Goldman Sachs, assumes any responsibility for the validity, reasonableness, accuracy or completeness of the Company Projections. Delphi Technologies has made no representation to BorgWarner, in the transaction agreement or otherwise, concerning the Company Projections.

The following summary of the Company Projections illustrate the views of Delphi Technologies’ management regarding a plausible range of outcomes for Delphi Technologies’ business on a standalone basis. The following is a summary of the Company Projections (dollars in millions, except as otherwise indicated):

January Company Projections

 

FYE Dec-31		2019A				2020E				2021E				2022E				2023E
Total Revenue		$	4,361			$	4,216			$	4,354			$	4,553			$	4,854
Gross Profit		$	691			$	644			$	744			$	824			$	905
Operating Income		$	142			$	184			$	353			$	455			$	530
Adj. Operating Income1		$	314			$	281			$	384			$	463			$	539
(+) Depreciation & Amortization2			207				219				224				230				237
EBITDA3		$	380			$	406			$	577			$	685			$	767
Adj. EBITDA4		$	521			$	500			$	608			$	693			$	776
Capex			(371	)			(227	)			(215	)			(229	)			(218	)
Dec. in net working capital			15				30				26				45				40
Taxes5			(62	)			(73	)			(89	)			(98	)			(103	)
Other6			(74	)			(76	)			(64	)			(21	)			(7	)
Unlevered Free Cash Flow7		$	29			$	155			$	267			$	391			$	488

 

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