<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON March 25, 1999
REGISTRATION NO. 333-73285
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-1004
---------------
AMENDMENT NO. 1
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
(Exact name of registrant as
specified in its charter)
State of Delaware 38-3430473
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5725 Delphi Drive, Troy, Michigan 48098
(248)813-2000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
---------------
Alan S. Dawes
Chief Financial Officer and Vice President
Delphi Automotive Systems Corporation
5725 Delphi Drive
Troy, Michigan 48098
(248)813-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------------
Copies to:
Logan G. Robinson, Esq. F. Douglas Raymond, III, Esq.
Vice President and General Counsel Drinker Biddle & Reath LLP
Delphi Automotive Systems Corporation 1345 Chestnut Street
5725 Delphi Drive Philadelphia, Pennsylvania 19107-3496
Troy, Michigan 48098 (215)988-2700
(248)813-2000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement depending
upon market conditions and other factors.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to rule
434, please check the following box. |_|
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
SUBJECT TO COMPLETION, DATED
PROSPECTUS
- ----------
U.S. $2,500,000,000
-------------------
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
5725 DELPHI DRIVE
TROY, MICHIGAN 48098
(248)813-2000
DEBT SECURITIES
We may offer to sell up to U.S. $2,500,000,000 of our debt securities
in one or more offerings. In this prospectus, we describe generally the terms of
these securities. We will describe the specific terms of the securities that we
offer in a supplement to this prospectus at the time of each offering. If any
offering involves underwriters, dealers or agents, we will describe our
arrangements with them in the prospectus supplement that relates to that
offering.
SEE "RISK FACTORS" ON PAGE 5 FOR INFORMATION YOU SHOULD CONSIDER BEFORE
BUYING THESE SECURITIES.
----------------
The Securities and Exchange Commission and State Securities regulators have not
approved or disapproved these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is
----------------
- --------------------------------------------------------------------------------
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
- --------------------------------------------------------------------------------
<PAGE> 3
TABLE OF CONTENTS
Page
----
About this Prospectus...............................2
Where You Can Find More Information.................3
The Company.........................................4
Risk Factors .......................................5
Use of Proceeds.....................................6
Ratio of Earnings to Fixed
Charges............................................6
Description of Debt Securities......................6
Plan of Distribution...............................17
Experts............................................19
Legal Opinions.....................................19
---------------------------
You should rely only on the information incorporated by reference or
contained in this prospectus and any applicable prospectus supplement. We have
not authorized anyone to provide you with information different from that
contained in this prospectus. We are offering to sell, and seeking offers to
buy, our securities only in jurisdictions where offers and sales are permitted.
The information contained in this prospectus or the applicable prospectus
supplement is accurate only as of the date on the front of those documents,
regardless of the time of delivery of this prospectus or the applicable
prospectus supplement or of any sale of our securities.
In this prospectus, "we", "us", "our" and the "Company" each refers to
Delphi Automotive Systems Corporation.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed
with the Securities and Exchange Commission using a "shelf" registration
process. Under this shelf registration, we may sell the securities described in
this prospectus in one or more offerings up to a total dollar amount of
$2,500,000,000. We provide information to you about these securities in three
documents that progressively provide more detail:
1. This prospectus, which contains general information that may or may
not apply to each offering of securities.
2. The applicable prospectus supplement, which will contain more
specific information than this prospectus and may also add, update or
change information
-2-
<PAGE> 4
contained in this prospectus. To the extent information differs from
this prospectus, as amended, you should rely on the different
information in the applicable prospectus supplement.
3. The pricing supplement, if applicable, will provide final details
about a specific offering and the terms of the offered securities,
including their price. To the extent information differs from this
prospectus or the prospectus supplement, you should rely on the
different information in the pricing supplement.
You should read both this prospectus and any prospectus supplement or pricing
supplement together with any additional information described under the heading
"Where You Can Find More Information" to learn more about the Company and the
securities offered.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC, Washington, D.C., a registration statement
on Form S-3 under the Securities Act of 1933, as amended, with respect to the
securities that we are offering by this prospectus. This prospectus does not
contain all of the information set forth in the registration statement and the
exhibits and schedules thereto. Certain items are omitted in accordance with the
rules and regulations of the SEC. For further information with respect to the
Company and the securities offered hereby, reference is made to the registration
statement and the exhibits and any schedules filed with the registration
statement. Statements contained in this prospectus as to the contents of any
contract or other document referred to are not necessarily complete and in each
instance, if such contract or document is filed as an exhibit, reference is made
to the copy of such contract or other document filed as an exhibit to the
registration statement, each statement being qualified in all respects by such
reference.
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file,
including the registration statement, at the SEC's Public Reference Room at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the SEC's regional
offices located at Seven World Trade Center, Suite 1300, New York, New York
10048 and at Citicorp Center, Suite 1400, 500 West Madison Street, Chicago, IL
60661. For further information on the operation of the Public Reference Room,
you may call the SEC at 1-800-SEC-0330. Our SEC filings are also available to
the public over the Internet at the SEC's website at http://www.sec.gov. You may
also inspect our SEC filings at the New York Stock Exchange, the exchange on
which our common stock is listed, at 20 Broad Street, 7th Floor, New York, New
York 10005.
The SEC allows us to "incorporate by reference" the information in
documents that we file with them. This means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this prospectus, and
information in documents that we file after the date of this prospectus and
before the termination of the offering contemplated by this prospectus will
automatically update and supersede information in this prospectus.
We incorporate by reference our Annual Report on Form 10-K for the
year ended December 31, 1998 (File No. 1-14787), and
-3-
<PAGE> 5
any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended until we sell all of the
securities offered by this prospectus.
We will provide without charge, upon written or oral request, to each
person to whom this prospectus is delivered, a copy of any or all of the
documents described above which have been or may be incorporated by reference in
this prospectus but not delivered with this prospectus. Such request should be
directed to:
Delphi Automotive Systems Corporation
Attn: Investor Relations
5725 Delphi Drive
Troy, Michigan 48098
Telephone Number: (248)813-2000
- ---------------
This prospectus contains or incorporates by reference forward-looking
statements that have been made pursuant to the provisions of the Private
Securities Litigation Reform Act of 1995. These forward-looking statements are
not historical facts, but rather are based on our current expectations,
estimates and projections about Delphi's industry, our beliefs and assumptions.
Words such as "anticipates", "expects", "intends", "plans", "believes", "seeks",
"estimates" and similar expressions are intended to identify forward-looking
statements. These statements are not guarantees of future performance and are
subject to certain risks, uncertainties and other factors, some of which are
beyond our control, are difficult to predict and could cause actual results to
differ materially from those expressed or forecasted in the forward-looking
statements. Many of these risks and uncertainties will be described with
particularity in the applicable prospectus supplement. We caution you not to
place undue reliance on these forward-looking statements, which reflect our
management's view only as of the date of this prospectus or the prospectus
supplement containing such forward-looking statements. We are not obligated to
update these statements or publicly release the result of any revisions to them
to reflect events or circumstances after the date of this prospectus or the
applicable prospectus supplement, or to reflect the occurrence of unanticipated
events.
THE COMPANY
We are the world's largest and most diversified supplier of components,
integrated systems and modules to the automotive industry, with 1998 net sales
of $28.5 billion. We have become a leader in the global automotive parts
industry by capitalizing on the extensive experience we have gained as the
principal supplier of automotive parts to General Motors, the world's largest
manufacturer of automotive vehicles. We are primarily a "Tier 1" supplier, which
means that we generally provide our products directly to automotive vehicle
manufacturers. We also sell our products to the worldwide aftermarket for
replacement parts and to customers other than vehicle manufacturers.
Before the initial public offering of our common stock in February
1999, we were a wholly-owned subsidiary of General Motors. General Motors now
owns approximately 82.3%
-4-
<PAGE> 6
of our outstanding common stock and the public owns the rest. Several years ago,
we began to transform our Company from a North America-based, captive component
supplier to General Motors into a global supplier of components, integrated
systems and modules for a wide range of customers. We now sell our products to
every major manufacturer of light vehicles in the world. We have also
established an expansive global presence, with a network of manufacturing sites,
technical centers, sales offices and joint ventures located in every major
region of the world.
Through our experience with General Motors, we have developed a
sophisticated understanding of the design, engineering, manufacture and
operation of all aspects of the automotive vehicle. We have both extensive,
technical expertise in a broad range of product lines and strong systems
integration skills, which enable us to provide comprehensive, systems-based
solutions for our customers. We believe that we are one of the leading Tier 1
suppliers in each of our focused product areas. We operate our business along
three major product sectors which work closely together to coordinate our
product development and marketing efforts. Our three product sectors are:
Electronics & Mobile Communication, which includes our automotive electronics
and audio and communication systems; Safety, Thermal & Electrical Architecture,
which includes our interior, thermal and power and signal distribution products;
and Dynamics & Propulsion, which includes our energy and engine management,
chassis and steering products.
Our Company was incorporated in Delaware in late 1998 in preparation
for our initial public offering and for the separation of our business from
General Motors effective as of January 1, 1999, when we acquired the assets and
assumed the liabilities of the business of the Delphi Automotive Systems
business sector of General Motors.
General Motors has announced that it currently plans to complete its
divestiture of our Company later in 1999 by distributing all of its shares of
our common stock to the holders of General Motors' $1-2/3 common stock. General
Motors currently expects to accomplish this distribution through a split-off
(such as an exchange offer by General Motors in which holders of General Motors'
$1-2/3 common stock would be invited to tender shares of that stock to General
Motors in exchange for the 465 million shares of our common stock held by
General Motors), a spin-off or some combination of both transactions. General
Motors has sole discretion to determine the timing, structure and terms of the
distribution. We have agreed to cooperate with General Motors in all respects to
complete the divestiture because we believe that our complete separation from
General Motors will enhance our ability to pursue our business strategy. General
Motors is not, however, obligated to complete the divestiture and we cannot
assure you as to whether or when it will occur.
RISK FACTORS
You should carefully consider the specific risks set forth under the
caption "Risk Factors" in the applicable prospectus supplement before making an
investment decision. The risks and uncertainties described in the applicable
prospectus supplement are not the only ones facing our Company. Additional risks
and uncertainties not currently known to us or that we currently think are
immaterial may also impact our business operations.
-5-
<PAGE> 7
USE OF PROCEEDS
Unless we otherwise state in the applicable prospectus supplement, we
will use the net proceeds from the sale of the securities to repay portions of
the indebtedness outstanding under our revolving credit facilities or for other
general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges were 6.4, 6.8, 4.3 and 1.7 for
the years ended December 31, 1994, 1995, 1996 and 1997, respectively.
Fixed charges exceeded earnings by $320 million for the year
ended December 31, 1998, resulting in a ratio of less than one.
Our earnings available for fixed charges for the years ended December
31, 1998, 1997 and 1996 were impacted by a number of special items which
management views as non-recurring in nature. The special items included charges
associated with our evaluation of the competitiveness of our business,
divestitures and plant closing charges as well as work stoppages at certain GM
and Delphi locations. Excluding the impact of these special items, our ratio
of earnings to fixed charges would have been 4.6, 6.3 and 7.0 for the years
ended December 31, 1998, 1997 and 1996, respectively. For more information on
special items and work stoppages, see "Management's Discussion and Analysis of
Financial Condition and Results of Operations-Results of Operations-Special
Items and Work Stoppages" and Note 3 to our consolidated financial statements
included in our 1998 Annual Report on Form 10-K incorporated herein by
reference.
Our ratio of earnings to fixed charges for each of the periods
indicated has been computed by dividing earnings before income taxes and fixed
charges by the fixed charges. Earnings have been adjusted to exclude equity
earnings of non-consolidated affiliates and include cash distributions received
from non-consolidated affiliates. This ratio includes the earnings and fixed
charges of the Company and its consolidated subsidiaries. Fixed charges
primarily include interest expense and amortization of debt expense.
DESCRIPTION OF DEBT SECURITIES
We describe in this section the general terms that will apply to any
particular series of debt securities that the Company may offer in the future.
When the Company issues a particular series, we will describe in the prospectus
supplement that relates to the series (i) the specific terms of the debt
securities and (ii) the extent to which the general terms described in this
section apply to the debt securities of that series.
The Company expects to issue the debt securities under an Indenture
dated as of , 1999 with The First National Bank of Chicago as
Trustee, which is included as an exhibit to the registration statement of which
this prospectus forms a part. In the discussion that follows, we summarize
particular provisions of the Indenture and include the relevant section numbers
of the Indenture in parentheses. Our discussion of Indenture provisions is not
complete; you should read the Indenture for a more complete understanding of the
provisions we describe.
The aggregate principal amount of debt securities that the Company may
issue under the Indenture is unlimited. (Section 2.01)
-6-
<PAGE> 8
GENERAL
Each prospectus supplement relating to a particular series of debt
securities that the Company offers will describe the specific terms of the
series of debt securities. Those specific terms will include some or all of the
following:
(i) the designation of the debt securities;
(ii) the authorized denominations if other than $1000 (or integrals
of $1000) for registered debt securities and if other than
$5000 for unregistered securities, and any limit on the
aggregate principal amount of the debt securities;
(iii) the percentage of their principal amount at which the debt
securities are issued;
(iv) the maturity date or dates of the debt securities (or the
manner of determining the maturity date);
(v) the annual interest rate or rates, if any, which may be fixed
or variable; and the manner of calculating any variable
interest rate;
(vi) the date or dates from which interest, if any, will accrue (or
the method of determining such date or dates), and the
interest payment dates and their associated record dates;
(vii) whether the Company may redeem the debt securities and, if so,
the redemption date or dates, redemption price or prices, and
other applicable terms of redemption;
(viii) any mandatory or optional sinking fund or analogous
provisions;
(ix) provisions for the defeasance of the debt securities;
(x) the form in which we will issue debt securities (registered or
bearer), any restrictions on the exchange of one form for
another and on the offer, sale and delivery of debt securities
in either form;
(xi) whether and under what circumstances the Company will pay
additional amounts on debt securities held by a person who is
not a United States person (as defined in the prospectus
supplement) in respect of specified taxes, assessments or
other governmental charges withheld or deducted; and if so,
whether the Company has the option to redeem the affected debt
securities rather than pay such additional amounts;
(xii) if other than U.S. dollars, the currency or currencies for
which the debt securities may be purchased and the currency in
which the principal of, premium, if any, and interest, if any,
on the debt securities is payable;
-7-
<PAGE> 9
(xiii) any exchanges on which the debt securities are listed;
(xiv) whether the debt securities are to be issued in book-entry
form and, if so, the identity of the depositary for such
book-entry debt securities;
(xv) the place or places where the principal of, premium, if any,
interest, if any, and certain additional amounts required in
respect of taxes owed to holders of the debt securities, if
any, on the debt securities is payable;
(xvi) if the amount of principal of and interest on the debt
securities may be determined with reference to an index based
on a currency other than that in which the debt securities are
denominated, the manner of determining such amounts;
(xvii) the portion of the principal amount (if other than the
principal amount) of the debt securities payable upon
declaration of acceleration of their maturity date;
(xviii) the form and terms of any certificates, documents or
conditions required for the issuance of debt securities in
definitive form;
(xix) any trustees, deposititories, authenticating or paying agents,
transfer agents, registrars or any other agents with respect
to the debt securities;
(xx) any other specific terms of the debt securities, including any
additional covenants and any terms that may be required or
advisable under applicable laws or regulations. (Section 2.01)
The debt securities will be unsecured and will rank equally and ratably
with all other unsecured and unsubordinated indebtedness of the Company (other
than obligations preferred by mandatory provisions of law).
Unless we say otherwise in a prospectus supplement, holders of debt
securities may present them for transfer (unless the debt securities are issued
in book-entry form) or payment at the office of the Trustee, One First National
Plaza, Suite 0126, Chicago, Illinois 60670-0126. The Company may, however, pay
the interest on registered debt securities by mailing checks to the holders of
those debt securities at the addresses listed in the Company's register or, for
holders of at least U.S. $10,000,000 aggregate principal amount of debt
securities, by wire transfer of immediately available funds. (Sections 4.01 and
4.02) The Company will not levy a service charge for any transfer or exchange of
registered debt securities, but may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection with a transfer or
exchange. (Section 2.05)
Holders of debt securities in bearer form (together with any coupons
attached to them) must physically present such debt securities or coupons for
payment, subject to any applicable laws and regulations, at one of the paying
agencies that the Company maintains in a city or cities located outside the
United States. (Sections 4.01 and 4.02) Debt securities in bearer form
-8-
<PAGE> 10
(except for temporary bearer securities) and any coupons attached to them will
be transferable by delivery. (Section 2.05)
The Company may issue some of the debt securities as discounted debt
securities (bearing no interest or interest at a rate that is below market at
the time of issuance), which are sold at a substantial discount below their
stated principal amount. When an event of default occurs with respect to a
particular series of debt securities, the amount that the holders of such series
may declare to be immediately due and payable will be less than the principal
amount in the case of discounted debt securities. (Section 6.01)
If a prospectus supplement specifies that the debt securities will have
a redemption option, the "Option to Elect Repurchase" will constitute an issuer
tender offer under the Exchange Act of 1934, as amended. The Company will comply
with all issuer tender offer rules and regulations under the Securities and
Exchange Act of 1934, as amended, if such redemption option is elected,
including making any required filings with the Securities and Exchange
Commission and furnishing certain information to the holders of the debt
securities.
BOOK-ENTRY SECURITIES - DELIVERY AND FORM
Some or all of the debt securities of a series may be issued in the
form of one or more global securities, each of which will have an aggregate
principal amount equal to the aggregate principal amount of the debt securities
that it represents. Each global security will be deposited with a depositary (to
be specified in the applicable prospectus supplement) or its nominee, and, if in
registered form, registered in the name of the depositary or the depositary's
nominee. Each depositary for a global security in registered form must be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation. (Section 2.03)
The beneficial owner of a debt security represented by a global
security in bearer form may exchange its interest in the global security for a
debt security or debt securities in either bearer or registered form of any
authorized denomination, subject to the rules of the depositary. (Section 2.10)
We will describe the specific terms of the depositary arrangement with
respect to a series of debt securities in the applicable prospectus supplement.
CERTAIN COVENANTS
In this section we describe the principal covenants that will apply to
the debt securities unless otherwise indicated in the applicable prospectus
supplement. We make use of several defined terms; the associated definitions are
located at the end of this section.
Limitation on Liens. The Indenture provides that the Company will not, and will
not permit any of its Manufacturing Subsidiaries to, issue or assume
any Debt secured by a Mortgage upon any Domestic Manufacturing Property
of the Company or of any Manufacturing Subsidiary, or upon any shares
of stock or indebtedness of any Manufacturing Subsidiary
-9-
<PAGE> 11
(whether that Domestic Manufacturing Property, those shares of stock or
that indebtedness are then currently owned or later acquired) without
providing at the same time that the Company issues or assumes any such
Debt that the debt securities (together with any other indebtedness of
the Company or the Manufacturing Subsidiary ranking equally with the
debt securities then existing or later created) will be secured equally
and ratably with such Debt.
The foregoing restriction does not, however, apply if the aggregate amount of
Debt that the Company or any Manufacturing Subsidiary issues or assumes and so
secures by Mortgages, together with (i) all other Debt of the Company and its
Manufacturing Subsidiaries which (if originally issued or assumed at such time)
would otherwise be subject to the foregoing restrictions, but not including Debt
permitted to be secured under clauses (i) through (v) of the immediately
following paragraph and not including Permitted Receivables Financings, and (ii)
all Attributable Debt of the Company and its Manufacturing Subsidiaries in
respect of sale and lease-back transactions, does not at the time exceed 15% of
Consolidated Net Tangible Assets as shown on the audited consolidated financial
statements for the most recently completed fiscal year.
In addition, the covenant described in the first paragraph above does
not apply to:
(i) Mortgages on property, shares of stock or indebtedness of
any corporation or other entity existing at the time (a) that
the corporation or other entity becomes a Manufacturing
Subsidiary or (b) of a sale, lease or other disposition of all
or substantially all of the properties of the corporation or
other entity to the Company or a Manufacturing Subsidiary;
(ii) Mortgages on property that exist at the time the Company
or a Manufacturing Subsidiary acquires the property; or
Mortgages to secure (a) the payment of all or part of the
purchase price of such property when the Company or a
Manufacturing Subsidiary acquires it, (b) any Debt incurred
prior to, at the time of, or within 180 days after, the later
of the date of acquisition of such property and the date such
property is placed in service, for the purpose of financing
all or any part of its purchase price, or (c) any Debt
incurred for the purpose of financing the Company's or a
Manufacturing Subsidiary's cost of improvements to such
acquired property;
(iii) Mortgages securing a Manufacturing Subsidiary's Debt to
the Company or to another Subsidiary;
(iv) Mortgages on property of the Company or a Manufacturing
Subsidiary in favor of:
(a) the United States of America or any State,
(b) any department, agency or instrumentality or
political subdivision of the United States of America or
any State, or
-10-
<PAGE> 12
(c) any other country, or any political subdivision of
any other country,
in connection with financing arrangements between the Company
or a Manufacturing Subsidiary and any of the foregoing
governmental bodies or agencies, to the extent that Mortgages
are required by the governmental programs under which those
financing arrangements are made, to secure partial, progress,
advance or other payments under any contract or statute or to
secure any indebtedness incurred for the purpose of financing
all or part of the purchase price or the cost of construction
of the property subject to such Mortgages;
(v) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of
any Mortgage referred to in the foregoing clauses (i) to (iv),
as long as (a) the principal amount of Debt secured by any
such Mortgage does not exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement
and (b) the extension, renewal or replacement is limited to
all or a part of the property (including improvements) that
secured the Mortgage being extended, renewed or replaced.
(Section 4.06)
Limitation on Sale and Lease-Back. The Indenture provides that the Company will
not, and will not permit any Manufacturing Subsidiary to, enter into
any arrangement with any person in which the Company or a Manufacturing
Subsidiary leases from such person any Domestic Manufacturing Property
that (i) the Company or the Manufacturing Subsidiary owns on the date
that the debt securities are originally issued and (ii) the Company or
the Manufacturing Subsidiary has sold or will sell to such person
(except for temporary leases having a maximum term of three years and
except for leases between the Company and a Manufacturing Subsidiary or
between Manufacturing Subsidiaries), unless either:
(i) The Company or the Manufacturing Subsidiary could,
under the covenant on limitation on liens described above,
issue, assume, extend, renew or replace Debt secured by a
Mortgage on the Domestic Manufacturing Property equal in
amount to the Attributable Debt in respect of such sale and
lease-back arrangement without equally and ratably securing
the debt securities; however, on and after the date that the
sale and lease-back arrangement becomes effective, the
Attributable Debt in respect of such sale and lease-back
arrangement would be deemed for all purposes under the
covenant on limitation on liens described above and the
covenant on limitation on sale and lease-back to be Debt
subject to the provisions of the covenant on limitation on
liens described above (which provisions include the exceptions
set forth in clauses (i) through (v) of this description of
such covenant), or
(ii) Within 180 days of the effective date of the sale and
lease-back arrangement, the Company applies a cash amount
equal to the Attributable Debt in respect of the arrangement
to the retirement (other than any mandatory retirement or by
way of payment at maturity) of Debt of the Company or any
Manufacturing Subsidiary (other than Debt owned by the Company
or any
-11-
<PAGE> 13
Manufacturing Subsidiary) that by its terms matures at, or is
extendible or renewable at the borrower's option to a date
more than twelve months after the date of the creation of such
Debt. (Section 4.07)
Limitation on Consolidation, Merger, Sale or Conveyance. The Indenture provides
that the Company will not merge or consolidate with any other entity,
and will not sell or convey all or substantially all of its assets to
any person or entity, unless:
(i) Either the Company is the surviving corporation, or if not,
the successor entity is organized under the laws of the United States
or any State and expressly assumes, by executing a supplemental
indenture, (a) the obligation to pay the principal of, premium, if any,
interest, if any, and any other additional amounts, on all the debt
securities and any coupons and (b) the performance of all of the
Company's covenants and the satisfaction of all the conditions to be
satisfied by the Company under the Indenture;
(ii) Immediately after the merger, consolidation, sale or
conveyance is effective, no event of default under the Indenture will
have occurred or be continuing; and
(iii) The Company delivers to the Trustee under the Indenture a
certificate and legal opinion each stating that the merger,
consolidation, sale or conveyance, any supplemental indenture, and any
assumption by the successor entity of the Company's obligations
described above, complies with the requirements set forth in Article
Eleven of the Indenture regarding the Company's ability to carry out a
merger, consolidation, sale or conveyance of assets. (Section 11.01)
Definitions Applicable to Covenants. The following definitions will apply to the
covenants summarized above:
(i) "Attributable Debt" means, at the time of determination as to any
lease, the present value (discounted at the actual rate, if stated, or,
if no rate is stated, the implicit rate of interest of such lease
transaction as determined by the chairman, president, any vice
chairman, any vice president, the treasurer or any assistant treasurer
of the Company), calculated using the interval of scheduled rental
payments under such lease, of the obligation of the lessee for net
rental payments during the remaining term of such lease (excluding any
subsequent renewal or other extension options held by the lessee). The
term "net rental payments" means, with respect to any lease for any
period, the sum of the rental and other payments required to be paid in
such period by the lessee thereunder, but not including, however, any
amounts required to be paid by such lessee (whether or not designated
as rental or additional rental) on account of maintenance and repairs,
insurance, taxes, assessments, water rates, indemnities or similar
charges required to be paid by such lessee thereunder or any amounts
required to be paid by such lessee thereunder contingent upon the
amount of sales, earnings or profits or of maintenance and repairs,
insurance, taxes, assessments, water rates, indemnities or similar
charges; provided, however, that, in the case of any lease which is
terminable by the lessee upon the payment of a penalty in an amount
which is less than the total discounted net rental payments required to
be paid from the later of the first date upon which such lease may
-12-
<PAGE> 14
be so terminated and the date of the determination of net rental
payments, "net rental payments" shall include the then-current amount
of such penalty from the later of such two dates, and shall exclude the
rental payments relating to the remaining period of the lease
commencing with the later of such two dates.
(ii) "Consolidated Net Tangible Assets" means, at any date, all amounts
that would, in conformity with GAAP, be set forth opposite the caption
"total assets" (or any like caption) on a consolidated balance sheet of
the Company and its consolidated Subsidiaries less (i) all current
liabilities and (ii) goodwill, trade names, patents, unamortized debt
discount, organization expenses and other like intangibles of the
Company and its consolidated Subsidiaries.
(iii) "Debt" means notes, bonds, debentures or other similar evidences
of indebtedness for money borrowed.
(iv) "Domestic Manufacturing Property" means any manufacturing plant or
facility owned by the Company or any Manufacturing Subsidiary which is
located within the continental United States of America and, in the
opinion of the Board of Directors, is of material importance to the
total business conducted by the Company and its consolidated affiliates
as an entity.
(v) "GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and the statements
and pronouncements of the Financial Accounting Standards Board, or in
such other statements by a successor entity as may be in general use by
significant segments of the accounting profession, which are applicable
to the circumstances as of the date of determination.
(vi) "Manufacturing Subsidiary" means any Subsidiary (A) substantially
all the property of which is located within the continental United
States of America, (B) which owns a Domestic Manufacturing Property and
(C) in which the Company's investment, direct or indirect and whether
in the form of equity, debt, advances or otherwise, is in excess of
$1 billion as shown on the books of the Company as of the end of the
fiscal year immediately preceding the date of determination; provided,
however, that "Manufacturing Subsidiary" shall not include any
Subsidiary that is principally engaged in leasing or in financing
installment receivables or otherwise providing financial or insurance
services to the Company or others or that is principally engaged in
financing the Company's operations outside the continental United
States of America.
(vii) "Mortgage" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance.
(viii) "Non-Recourse Debt" means all Debt which, in accordance with
GAAP, is not required to be recognized on a consolidated balance sheet
of the Company as a liability.
-13-
<PAGE> 15
(ix) "Permitted Receivables Financings" means, at any date of
determination, the aggregate amount of any Non-Recourse Debt
outstanding on such date relating to securitizations or other similar
off-balance sheet financings of accounts receivable of the Company or
any of its Subsidiaries.
(x) "Subsidiary" means any corporation or other entity of which at
least a majority of the outstanding stock or other beneficial interests
having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other governing body of such corporation
or other entity (irrespective of whether or not at the time stock or
other beneficial interests of any other class or classes of such
corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by the Company, or
by one or more Subsidiaries, or by the Company and one or more
Subsidiaries. (Section 4.07)
DEFEASANCE
If the terms of a particular series of debt securities provide for
defeasance of those debt securities, the Company may, at its option, (i)
discharge its obligations under the Indenture with respect to, and the entire
indebtedness on all the outstanding debt securities of, that series or (ii) not
comply with any term, provision, condition or covenant contained in the
Indenture with respect to that series, in each case by:
(i) depositing with the Trustee funds, or obligations issued or
guaranteed by the United States of America, sufficient to pay and discharge the
entire indebtedness on all outstanding debt securities of the series, or
fulfilling other terms and conditions of the satisfaction and discharge of the
debt securities of the series;
(ii) paying all other sums payable with respect to the outstanding debt
securities of the series;
(iii) delivering to the Trustee a legal opinion confirming that the
holders of the outstanding debt securities and any related coupons will not
recognize income, gain or loss for Federal income tax purposes as a result of
the defeasance of their debt securities; and
(iv) delivering to the Trustee an officer's certificate and legal
opinion each confirming that the Company has complied with all conditions
relating to defeasance of the debt securities contained in the Indenture.
(Section 12.02)
MODIFICATION OF THE INDENTURE
The Indenture provides that the Company and the Trustee may enter into
supplemental indentures without the consent of the holders of the debt
securities to (a) evidence the assumption by a successor corporation of the
obligations of the Company, (b) add covenants for the protection of the holders
of the debt securities, (c) add or change any of the provisions of the Indenture
to permit or facilitate the issuance of debt securities of any series in bearer
form and to provide for the exchange of debt securities in bearer form with
registered debt securities, (d) cure
-14-
<PAGE> 16
any ambiguity or correct any inconsistency in the Indenture or in a supplemental
indenture, (e) transfer, assign, mortgage or pledge any property to or with the
Trustee, (f) establish the form or terms of debt securities of any series as
permitted by the terms of the Indenture, (g) evidence the acceptance of
appointment by a successor trustee and (h) change or eliminate provisions of the
Indenture where the changes or eliminations do not apply to any debt security
outstanding and become effective only when there is no debt security outstanding
of a series created before the execution of the supplemental indenture that is
entitled to the benefit of the provision being changed or eliminated. (Section
10.01)
The Indenture also provides that the Company and the Trustee may enter
into a supplemental indenture to modify the Indenture, any supplemental
indenture or the rights of the holders of the debt securities issued under
either such Indenture or supplemental indenture, with the consent of the holders
of not less than a majority in principal amount of the debt securities of all
series at the time outstanding that are affected by that modification (voting as
one class) if the modification does not:
(i) (a) change the fixed maturity of any debt securities, (b) reduce
their principal amount or premium, if any, (c) reduce the rate or
extend the time of payment of interest or any additional amounts
payable on the debt securities, (d) reduce the amount due and payable
upon acceleration of the maturity of the debt securities or the amount
provable in bankruptcy or (e) make the principal of, or any interest,
premium or additional amounts on, any debt security payable in a coin
or currency different from that provided in the debt security,
(ii) impair the right to initiate suit for the enforcement of any such
payment on or after the stated maturity of the debt securities, or
(iii) reduce the requirement, stated above, for the consent of the
holders of the debt securities to any modification described above, or
the percentage required for the consent of the holders to waive
defaults, without the consent of the holder of each debt security so
affected. (Section 10.02)
EVENTS OF DEFAULT
An event of default with respect to any series of debt securities is
defined in the Indenture as: (a) default in payment of any principal or premium,
if any, on the series; (b) default for 30 days in payment of any interest or
additional amounts due with respect to the series; (c) default for 90 days after
notice in performance of any other covenant or agreement applicable to the debt
securities or contained in the Indenture; (d) default by the Company or any
Significant Subsidiary in any payment of $25,000,000 or more of principal of or
interest on any Debt or in the payment of $25,000,000 or more on account of any
guarantee in respect of Debt, beyond any period of grace that may be provided in
the instrument or agreement under which such Debt or guarantee was created (for
these purposes, the term "Significant Subsidiary" is defined as any Subsidiary
of the Company that, at any time, has at least 5% of the consolidated revenues
of the Company and its Subsidiaries at such time as reflected in the most recent
annual audited consolidated financial statements of the Company; the term
"Subsidiary" is defined as in our
-15-
<PAGE> 17
description of the covenants under the Indenture); or (e) certain events of
bankruptcy, insolvency or reorganization. (Section 6.01)
If an event of default under clause (a), (b), (c) or (d) above occurs
with respect to any series, the Trustee or the holders of at least 25% in
aggregate principal amount of all debt securities then outstanding affected by
the event of default may declare the principal (or, in the case of discounted
debt securities, the amount specified in their terms) of all debt securities of
the affected series to be due and payable. (Section 6.01)
If an event of default under clause (e) above occurs, the Trustee or
the holders of at least 25% in aggregate principal amount of all the debt
securities then outstanding (voting as one class) may declare the principal (or,
in the case of discounted debt securities, the amount specified in their terms)
of all outstanding debt securities not already due and payable to be due and
payable. (Section 6.01)
If the principal amount of debt securities has been declared due and
payable, the holders of a majority in aggregate principal amount of the
outstanding debt securities of the applicable series (or of all the outstanding
debt securities) may waive any event of default with respect to that series (or
with respect to all outstanding debt securities) if:
(i) The Company deposits with the Trustee all required payments on the
debt securities, plus certain fees, expenses disbursements and advances of the
Trustee and
(ii) all defaults under the Indenture have been remedied. (Section
6.01)
The holders of a majority in aggregate principal amount of the debt
securities of a particular series may also waive any default with respect to
that series and its consequences, except a default:
(i) in the payment of principal of, or any premium, interest or
additional amounts on, any debt securities of that series or
(ii) in respect of a covenant or provision in the Indenture that may
not be modified without the consent of the holders of each outstanding debt
security that would be affected by the modification. (Section 6.06)
The Indenture provides that the Trustee may withhold notice of any
default to the securityholders (except for default in the payment of principal
or any premium, interest or additional amounts) if it considers it in the
interests of the securityholders to do so. (Section 6.07)
Subject to the provisions of the Indenture relating to the duties of
the Trustee when an event of default occurs, the Trustee is not obligated to
exercise any of its rights or powers under the Indenture at the request, order
or direction of any of the securityholders, unless those securityholders have
offered to the Trustee reasonable indemnity. (Sections 7.01 and 7.02)
-16-
<PAGE> 18
Subject to such provisions for the indemnification of the Trustee and
to certain other limitations, the holders of a majority in aggregate principal
amount of the debt securities of all series affected by the occurrence of an
event of default (voting as one class) at the time outstanding may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee. (Section
6.06)
CONCERNING THE TRUSTEE
The First National Bank of Chicago is the Trustee under the Indenture.
The First National Bank of Chicago acts as depositary for funds of, makes loans
to, acts as trustee and performs certain other services for, the Company and
certain of its subsidiaries and affiliates in the normal course of its business.
PLAN OF DISTRIBUTION
We may sell the securities from time to time: (i) directly to
purchasers, (ii) through agents, (iii) through underwriters or dealers or (iv)
through a combination of these methods.
GENERAL
Underwriters, dealers, agents and remarketing firms that participate in
the distribution of the offered securities may be "underwriters" as defined in
the Securities Act of 1933, as amended. Any discounts or commissions they
receive from us and any profits they receive on the resale of the offered
securities may be treated as underwriting discounts and commissions under the
Securities Act of 1933, as amended. We will identify any underwriters, agents or
dealers and describe their commissions, fees or discounts in the applicable
prospectus supplement or pricing supplement.
AGENTS
We may designate agents to sell the securities. The agents will agree
to use their best efforts to solicit purchases for the period of their
appointment.
UNDERWRITERS
If underwriters are used in a sale, they will acquire the offered
securities for their own account. The underwriters may resell the securities in
one or more transactions, including negotiated transactions. These sales will be
made at a fixed public offering price or at varying prices determined at the
time of the sale. We may offer the securities to the public through an
underwriting syndicate or through a single underwriter.
Unless the applicable prospectus supplement or pricing supplement
states otherwise, the obligations of the underwriters to purchase the offered
securities will be subject to certain conditions contained in an underwriting
agreement that the Company and the underwriters will enter into. The
underwriters will be obligated to purchase all of the securities of the series
offered if any of the securities are purchased, unless the applicable prospectus
supplement or pricing
-17-
<PAGE> 19
supplement says otherwise. Any initial public offering price and any discounts
or concessions allowed, re-allowed or paid to dealers may be changed from time
to time.
DEALERS
We may sell the offered securities to dealers as principals, who may
then resell such securities to the public either at varying prices determined by
such dealers or at a fixed offering price agreed to with the Company.
REMARKETING FIRMS
We may sell securities to one or more remarketing firms, acting as
principals for their own accounts or as agents for the Company, who will
remarket the securities upon purchasing them in accordance with a redemption or
repayment pursuant to the terms of such securities.
DIRECT SALES
We may choose to sell the offered securities directly. In this case, no
underwriters or agents would be involved.
INSTITUTIONAL PURCHASERS
We may authorize agents, dealers or underwriters to solicit certain
institutional investors to purchase offered securities on a delayed delivery
basis pursuant to delayed delivery contracts providing for payment and delivery
on a specified future date. The applicable prospectus supplement or pricing
supplement will provide the details of any such arrangement, including the
offering price and commissions payable on the solicitations.
We will enter into such delayed delivery contracts only with
institutional purchasers that we approve. Such institutions may include
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions.
INDEMNIFICATION
We may have agreements with agents, underwriters, dealers and
remarketing firms to indemnify them against certain civil liabilities, including
liabilities under the Securities Act of 1933, as amended. Agents, underwriters,
dealers and remarketing firms, and their affiliates, may engage in transactions
with, or perform services for, us in the ordinary course of business. This
includes commercial banking and investment banking transactions.
MARKET MAKING, STABILIZATION AND OTHER TRANSACTIONS
Each series of offered debt securities will be a new issue and will
have no established trading market. We may elect to list any series of offered
debt securities on an exchange. Any underwriters that we use in the sale of
offered securities may make a market in such securities, but
-18-
<PAGE> 20
may discontinue such market making at any time without notice. Therefore, we
cannot assure that the securities will have a liquid trading market.
Any underwriter may engage in stabilizing transactions, syndicate
covering transactions and penalty bids in accordance with Rule 104 under the
Securities Exchange Act of 1934, as amended. Stabilizing transactions permit
bids to purchase the underlying security so long as the stabilizing bids do not
exceed a specified maximum. Syndicate covering transactions involve purchases of
the securities in the open market after the distribution has been completed in
order to cover syndicate short positions. Penalty bids permit the underwriters
to reclaim a selling concession from a syndicate member when the securities
originally sold by such syndicate member are purchased in a syndicate covering
transaction to cover syndicate short positions. Such stabilizing transactions,
syndicate covering transactions and penalty bids may cause the price of the
securities to be higher than it would otherwise be in the absence of such
transactions. The underwriters may, if they commence these transaction,
discontinue them at any time.
EXPERTS
The financial statements incorporated by reference in this prospectus
from the Company's Annual Report on Form 10-K have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report incorporated herein,
and have been so incorporated in reliance upon the report of that firm given
upon their authority as experts in accounting and auditing.
LEGAL OPINIONS
Unless we indicate otherwise in the applicable prospectus supplement,
Drinker Biddle & Reath LLP, Philadelphia, Pennsylvania, will issue an opinion
about the legality of the securities that we are offering in this prospectus. We
will also provide in the applicable prospectus supplement the name of counsel
that will issue an opinion as to certain legal matters for any underwriters,
dealers or agents.
-19-
<PAGE> 21
================================================================================
$2,500,000,000
Debt Securities
DELPHI AUTOMOTIVE
SYSTEMS CORPORATION
---------------------------
PROSPECTUS
, 1999
================================================================================
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses (other than
underwriting discounts and commissions) to be incurred in connection with the
offering described in this Registration Statement:
Fees and expenses of Trustee .....................................$ 25,000
Printing and Engraving Expenses................................... 300,000
Accounting fees and expenses...................................... 75,000
Legal fees and expenses........................................... 250,000
Blue Sky Fees and expenses........................................ 20,000
Rating Agencies' fees............................................. 75,000
Miscellaneous expenses............................................ 50,000
Total...................................................................$795,000
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
GENERAL CORPORATION LAW
The Company is incorporated under the laws of the State of Delaware.
Section 145 ("Section 145") of the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended (the "General
Corporation Law"), inter alia, provides that a Delaware corporation may
indemnify any persons who were, are or are threatened to be made, parties to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation), by reason of the fact that such person is or was an
officer, director, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonable incurred by such person in connection with such action, suit or
proceeding, provided such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that his conduct was illegal. A Delaware corporation may indemnify
any persons who are, were or threatened to be made, a party to any threatened,
pending or completed action or suit by or in the right of the corporation by
reasons of the fact that such person was a director, officer, employee or agent
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or
<PAGE> 23
enterprise. The indemnity may include expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit, provided such person acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests, provided that no indemnification is permitted
without judicial approval if the officer, director, employee or agent is
adjudged to be liable to the corporation. Where an officer, director, employee
or agent is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director has actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145.
CERTIFICATE OF INCORPORATION
The Company's Restated Certificate of Incorporation and Bylaws provide
for the indemnification of officers and directors to the fullest extent
permitted by the General Corporation Law.
All of the Company's directors and officers will be covered by
insurance policies maintained by the Company against certain liabilities for
actions taken in their capacities as such, including liabilities under the
Securities Act of 1933, as amended.
ITEM 16. EXHIBITS
**1 -- Form of Debt Security Underwriting Agreement (including
Form of Delayed
Delivery Contract)
*4.1 -- Form of Indenture between the Company and The First
National Bank of Chicago, Trustee
*4.2 -- Form of Global Debt Security
**5 -- Opinion of Drinker Biddle & Reath LLP as to the
legality of the securities
*12 -- Computation of Ratio of Earnings to Fixed Charges
**23.1 -- Independent Auditors' Consent
23.2 -- Consent of Counsel (included in Exhibit 5)
*24 -- Powers of Attorney
*25 -- Form T-1 Statement of Eligibility and Qualification under
the
Trust Indenture Act of 1939 of The First National Bank of
Chicago
* Previously filed. The Debt Security Underwriting Agreement, Indenture,
Global Debt Security and supplementary opinion of Drinker Biddle & Reath LLP
will be filed as an amendment or an exhibit to a report on Form 8-K and
incorporated herein by reference in connection with an offering of the
offered securities.
** Filed herewith.
<PAGE> 24
ITEM 17. UNDERTAKINGS
(a) Rule 415 Offering. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to rule 424(b), if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (i)
and (ii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934, as amended, that
are incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended, each such post-effective
amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by Reference. The
undersigned registrant hereby further undertakes that, for purposes of
determining any liability
<PAGE> 25
under the Securities Act of 1933, as amended, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended, (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934, as amended) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(h) Request for Acceleration of Effective Date. Insofar as indemnification for
liabilities arising under the Securities Act of 1933, as amended, may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions discussed in Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, as amended, and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933, as amended, and will be governed by the final
adjudication of such issue.
(i) Rule 430A. The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, as amended, the information omitted from the
form of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus filed by
the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act of 1933, as amended, shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities of 1933, as amended, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(j) Qualification of Trust Indentures Under the Trust Indenture Act of 1939 For
Delayed Offerings. The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
<PAGE> 26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant has duly caused this amendment to the registration statement
(File No. 333-73285) to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Troy, state of Michigan, on March 25, 1999.
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
By /s/ J.T. Battenberg III
------------------------------------------
J. T. Battenberg III, Chairman of the Board,
Chief Executive Officer and
President
Pursuant to the requirements of the Securities Act of 1933, as amended, this
amendment to the registration statement has been signed on March 25, 1999
by the following persons in the capacities indicated.
SIGNATURE TITLE
- --------- -----
/s/ J.T. Battenberg III Chairman of the Board,
- --------------------------------- Chief Executive Officer and President
J.T. Battenberg III (Principal Executive Officer)
/s/ Alan S. Dawes Chief Financial Officer and Vice
- --------------------------------- President (Principal Financial Officer)
Alan S. Dawes
/s/ Paul R. Free Chief Accounting Officer and Controller
- --------------------------------- (Principal Accounting Officer)
Paul R. Free
* Director
- ---------------------------------
Thomas H. Wyman
* Director
- ---------------------------------
John F. Smith, Jr.
* Director
- ---------------------------------
Harry J. Pearce
* Director
- ---------------------------------
Susan A. McLaughlin
* Director
- ---------------------------------
Roger S. Penske
* Director
- ---------------------------------
Oscar De Paula Bernardes Neto
* Director
- ---------------------------------
Virgis W. Colbert
* Director
- ---------------------------------
John D. Opie
* The undersigned, by signing his name hereto, does hereby execute this
amendment to the registration statement on behalf of the officers and directors
of the registrant listed above pursuant to the Powers of Attorney previously
filed with the Commission.
/s/ Alan S. Dawes
Alan S. Dawes, Attorney In Fact
<PAGE> 27
EXHIBIT INDEX
Exhibit Page No.
------- --------
**1 -- Form of Debt Security Underwriting Agreement
(including Form of Delayed Delivery Contract) 29
*4.1 -- Form of Indenture between the Company
and The First National Bank of Chicago, Trustee
*4.2 -- Form of Global Debt Security
**5 -- Opinion of Drinker Biddle & Reath LLP as to the
legality of the securities 48
*12 -- Computation of Ratio of Earnings to Fixed Charges
**23.1 -- Independent Auditors' Consent 51
23.2 -- Consent of Counsel (included in Exhibit 5)
*24 -- Powers of Attorney
*25 -- Form T-1 Statement of Eligibility and Qualification
under the
Trust Indenture Act of 1939 of The First National Bank of
Chicago
* Previously filed. The Debt Security Underwriting Agreement, Indenture, Global
Debt Security and supplementary opinion of Drinker Biddle & Reath LLP will be
filed as an exhibit or amendment to a report on Form 8-K and incorporated herein
by reference in connection with an offering of the offered securities.
** Filed herewith.
<PAGE> 1
EXHIBIT 1
Delphi Automotive Systems Corporation
Form of Underwriting Agreement
Dated , 1999
From time to time, Delphi Automotive Systems Corporation (the
"Company"), a Delaware corporation, may enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined.
I.
The Company proposes to issue from time to time debt securities (the
"Securities") to be issued pursuant to the provisions of the Indenture dated as
of , 1999 between the Company and The First National Bank of Chicago,
as Trustee (the "Indenture"). The Securities will have varying designations,
maturities, rates and times of payment of interest, selling prices and
redemption terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Securities and has filed with, or mailed for filing to, or proposes to file
with, the Commission a prospectus supplement specifically relating to the
Securities pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"). The term "Registration Statement" means the registration
statement as amended to the date of the Underwriting Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement in the
form first used to confirm sales of the Securities. The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement specifically
relating to the Securities in the form first used to confirm sales of the
Securities, as filed electronically with, or mailed for filing to, the
Commission pursuant to Rule 424. The term "Preliminary Prospectus" means a
preliminary prospectus supplement specifically relating to the Securities
together with the Basic Prospectus. If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement. As used herein, the terms "Registration Statement", "Basic
Prospectus", "Prospectus" and "Preliminary Prospectus" shall include in each
case the material, if any, incorporated by reference therein.
The term "Underwriters' Securities" means the Securities to be
purchased by the Underwriters herein. The term "Contract Securities" means the
Securities, if any, to be purchased pursuant to the delayed delivery contracts
referred to below.
<PAGE> 2
II.
If the Prospectus provides for sales of Securities pursuant to delayed
delivery contracts, the Company hereby authorizes the Underwriters to solicit
offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as herein defined), the Company will pay the managing Underwriter
of the offering of the Securities (the "Manager") as compensation, for the
accounts of the Underwriters, the fee set forth in the Underwriting Agreement in
respect of the principal amount of Contract Securities. The Underwriters will
not have any responsibility in respect of the validity or the performance of
Delayed Delivery Contracts. If the Company executes and delivers Delayed
Delivery Contracts with institutional investors, the Contract Securities shall
be deducted from the Securities to be purchased by the several Underwriters and
the aggregate principal amount of Securities to be purchased by each Underwriter
shall be reduced pro rata in proportion to the principal amount of Securities
set forth opposite each Underwriter's name in the Underwriting Agreement, except
to the extent that the Manager determines that such reduction shall be otherwise
and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made to the Company
in Federal or other funds immediately available in New York City against
delivery of such Securities for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, not later than _________, 1999,
as shall be designated in writing by the Manager. The time and date of such
payment and delivery with respect to the Underwriters' Securities are herein
referred to as the "Closing Date."
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, no proceedings for such purpose shall be pending
before or threatened by the Commission, there shall have been no material
adverse change (not in the ordinary course of business) in the financial
condition of the Company and its subsidiaries, taken as a whole, from
-2-
<PAGE> 3
that set forth in the Registration Statement and the representations and
warranties of the Company in this Agreement shall be true and correct in all
material respects on and as of the Closing Date with the same effect as if made
on the Closing Date; and the Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed on behalf of the Company by an
executive officer of the Company , to the foregoing effect. The officer making
such certificate may rely upon the best of his knowledge as to proceedings
threatened.
(b) The Manager shall have received on the Closing Date an opinion of
Drinker Biddle & Reath LLP, counsel to the Company, dated the Closing Date, to
the effect that:
(i) the Securities have been duly authorized and, when duly
executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, or by
institutional investors, if any, pursuant to Delayed Delivery
Contracts, will constitute valid and binding obligations of
the Company entitled to the benefits provided by the
Indenture, enforceable in accordance with the terms thereof
subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before
which any proceeding therefor may be brought);
(ii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a
valid and binding agreement of the Company, enforceable in
accordance with its terms subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor
may be brought); and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act);
(iv) the execution, delivery and performance of the Company's
obligations under this Agreement will not violate any
provision of applicable law (except that such counsel need
express no opinion in this paragraph as to compliance with any
disclosure requirement or any prohibition against fraud or
misrepresentation or as to whether performance of any
indemnification or contribution provisions would be permitted)
or the Certificate of Incorporation or By-laws of the Company
or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company of any of
its Significant Subsidiaries (as defined below) known to such
counsel;
-3-
<PAGE> 4
(v) in connection with the offer and sale of the Securities by
the Underwriters as contemplated by the Registration Statement
the Company is not required to obtain any consent, approval or
authorization of any governmental body or agency for the
performance of its obligations under this Agreement other than
the registration of the Securities under the Securities Act,
authorizations or qualifications required under the Trust
Indenture Act and compliance with the insurance, securities
and Blue Sky Laws of various jurisdictions (as to which we
express no opinion);
(vi) the statements in the Prospectus under "Description of
the Securities" and "Plan of Distribution", insofar as such
statements constitute a summary of the documents or
proceedings referred to therein, fairly present the
information called for with respect to such documents and
proceedings.
Such counsel shall also provide its advice that (relying as to factual
matters to the extent deemed appropriate by such counsel upon
representations and statements of officers and other representatives of
the Company) no facts came to its attention that caused such counsel to
conclude that (i) the Registration Statement (including the documents
incorporated by reference therein, except for (1) financial statements
and schedules and other financial and statistical data included or
incorporated by reference therein and (2) that part of the Registration
Statement that constitutes the Statement of Eligibility on Form T-1 of
the Trustee, as to which, in the case of either (1) or (2), such
counsel need express no belief), on its effective date, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Prospectus, on the date it bears or as
of the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading or (iii) as of the effective
date of the Registration Statement, either the Registration Statement
or the Prospectus appears on its face not to be responsive in all
material respects to the requirements of Form S-3 or of the Trust
Indenture Act (except for, in each case, financial statements and
schedules and other financial and statistical data included therein or
omitted therefrom, as to which such counsel need not express any
opinion).
With respect to the opinion to be provided pursuant to the immediately
preceding paragraph, such counsel may state that its opinion and belief
are based on its participation in the preparation of the Registration
Statement and Prospectus, and any amendments or supplements thereto,
and discussion of the contents thereof, but are without independent
check or verification, except as specified.
(c) The Manager shall have received on the Closing Date an
opinion of Logan G. Robinson, General Counsel of the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the State of Delaware, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing in each
other
-4-
<PAGE> 5
jurisdiction in which it owns or leases properties or conducts any
business, in each case so as to require such qualification;
(ii) each Significant Subsidiary of the Company has
been duly incorporated or organized, as the case may be, is validly
existing as a corporation or a limited liability company, as the case
may be, in good standing under the laws of the jurisdiction of its
incorporation, has the corporate or limited liability company power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each other jurisdiction in which it owns or leases
properties or conducts any business, in each case so as to require such
qualification;
(iii) all of the issued and outstanding shares of
capital stock or limited liability company interests, as the case may
be, of each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable in the
case of a corporation and are owned of record, directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or
claims;
(iv) other than as set forth or contemplated in the
Prospectus, there are no governmental investigations, legal or
governmental actions, suits or proceedings pending or, to the best of
such counsel's knowledge, threatened against or affecting the Company
or any of its subsidiaries or any of their respective properties or to
which the Company or any of its subsidiaries is or may be a party or to
which any property of the Company or its subsidiaries is or may be
subject which, if determined adversely to the Company or any of its
subsidiaries, would, individually or in the aggregate, have, or
reasonably be expected to have, a material adverse effect on the
business, financial position or results of operations of the Company
and its subsidiaries taken as a whole; to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and such counsel does
not know of any such pending or threatened action, suit or proceeding
or of any statutes, regulations, contracts or other documents required
to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or the Prospectus which are
not filed or described as required; and
(v) neither the Company nor any of its Significant
Subsidiaries is, or with the giving of notice or lapse of time or both
would be, in violation of or in default under, its Articles of
Incorporation or By-Laws or any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company or any of its Significant Subsidiaries is a party
or by which it or any of them or any of their respective properties is
bound, except for violations and defaults which individually and in the
aggregate are not material to the Company and its Significant
Subsidiaries taken as a whole or to the holders of the Securities;
(d) The Manager shall have received on the Closing Date an
opinion of counsel for the Underwriters, dated the Closing Date with respect to
the validity of the Indenture and the Securities, the Registration Statement,
the Prospectus and other related matters as the
-5-
<PAGE> 6
Underwriters may reasonably request, and such counsel shall have received such
papers and information as it may reasonably request to enable it to pass upon
such matters.
(e) The Manager shall have received on the Closing Date a
letter dated the Closing Date in form and substance satisfactory to the Manager,
from DeLoitte & Touche LLP, independent accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(f) No downgrading shall have occurred in the rating accorded
the Company's debt securities or preferred stock by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities or preferred stock.
If any condition specified in this Article V shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Manager by notice to the Company at any time at or prior to
the Closing Date, and such termination shall be without liability of any party
to any other party, except as provided in Article X.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To file the Prospectus in a form approved by the Underwriters
pursuant to Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of determination
of the offering price of the Securities or, if applicable, such earlier time as
may be required by Rule 424(b). As used herein, the term "Business Day" means
any day other than a day on which banks are permitted or required to be closed
in New York City;
(b) To furnish the Manager, without charge, a copy of the Registration
Statement including exhibits and materials, if any, incorporated by reference
therein and, during the period mentioned in paragraph (d) below, as many copies
of the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto as the Manager may reasonably request.
(c) From the date hereof and prior to the Closing Date, before amending
or supplementing the Registration Statement or the Prospectus, to furnish the
Manager a copy of each such proposed amendment or supplement.
(d) If, during such period after the first date of the public offering
of the Securities as in the opinion of counsel for the Underwriters, the
Prospectus is required by law to be delivered, any event shall occur as a result
of which it is necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to prepare
and furnish, at its own expense, to the Underwriters, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when
-6-
<PAGE> 7
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with applicable law,
[provided that all expenses with respect to any amendment of or supplement to
the Prospectus required to correct a misleading statement made therein in
reliance upon and in conformity with information relating to an Underwriter
furnished to the Company in writing by such Underwriter expressly for use
therein, and confirmed by such Underwriter in a separate "blood letter" as
having been furnished specifically for such purpose, shall be borne by such
Underwriter.]
(e) To promptly advise the Manager of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose, and of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose.
(f) To endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky Laws of such jurisdictions as the Manager shall
reasonably request and to pay all reasonable expenses (including reasonable fees
and disbursements of counsel) in connection with such qualification.
(g) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the twelve-month period
beginning with the first fiscal quarter of the Company occurring after the
effective date of the Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder.
VII.
The Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before, or to its knowledge threatened
by, the Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(ii) the Registration Statement and the Prospectus (as amended or supplemented,
if applicable), comply and will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iii) the Prospectus, on the date it bears or as of the Closing
Date, does not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to (i) statements or
omissions in the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter expressly for use therein and (ii) that part of the Registration
-7-
<PAGE> 8
Statement which constitutes the Statement of Eligibility and Qualification (Form
T-1) of the Trustee under the Trust Indenture Act.
(c) The Company has been duly incorporated, is validly existing as a
company in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or to be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(d) Each Significant Subsidiary of the Company has been duly
incorporated or organized, as the case may be, is validly existing as a company
or a limited liability company, as the case may be, in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or to be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole; all of the
issued shares of capital stock or limited liability company interests, as the
case may be, of each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and are owned
by the Company and its subsidiaries free and clear of all liens, encumbrances,
equities or claims. Delphi Automotive Systems LLC, Delco Electronics Corporation
and Delphi Automotive Systems (Holding), Inc. (collectively, the "Significant
Subsidiaries") are the only subsidiaries of the Company that are "significant
subsidiaries" as such term is defined in Rule 1-02(w) of Regulation S-X.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Securities have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Securities will
not be subject to any preemptive or similar rights.
(g) The Indenture has been duly authorized and duly qualified under the
Trust Indenture Act and, when executed and delivered by the Company and the
Trustee, the Indenture will constitute a valid and binding instrument
enforceable in accordance with its terms, subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought; and the Securities and the Indenture will conform to the descriptions
thereof in the Prospectus.
(h) The execution, delivery and performance of this Agreement will not
violate (i) any provision of applicable law or the Certificate of Incorporation
or By-laws of the Company or (ii) any agreement or other instrument binding upon
the Company or any of its subsidiaries, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
-8-
<PAGE> 9
the Company or any subsidiary, except for any such agreements, instruments,
judgments, orders or decrees that would not, singularly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries as a whole.
(i) No consent, approval or authorization of any governmental body or
agency is required for the performance of this Agreement other than the
registration of the Securities under the Securities Act and compliance with the
Trust Indenture Act or insurance, securities and Blue Sky Laws of various
jurisdictions.
VIII.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any Preliminary Prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Underwriter expressly for
use therein, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such losses, claims, damages or liabilities
promptly after receipt of adequate documentation relating thereto, provided that
the foregoing indemnity agreement with respect to any Preliminary Prospectus or
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Securities to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such losses, claims, damages or liabilities, unless
such failure is the result of noncompliance by the Company with Article VI(b)
hereof.
Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and any
person controlling the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing by
such Underwriter expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any Preliminary Prospectus.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two
-9-
<PAGE> 10
preceding paragraphs, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and disbursements
of such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
reasonable fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party shall have agreed in writing
to pay such fees and expenses, (ii) the indemnifying party shall have failed to
assume the defense of such proceeding and employ counsel reasonably satisfactory
to the indemnified person in such proceeding or (iii) the named parties to any
such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to local counsel) for all such indemnified parties, and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by the Manager in the case of parties indemnified pursuant to the
second preceding paragraph and by the Company in the case of parties indemnified
pursuant to the first preceding paragraph. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is entitled to indemnification
hereunder, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
If the indemnification provided for in the first or second paragraph of
this Article VIII is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other in connection with the offering of
the Securities shall be deemed to be in the same respective proportions as the
net proceeds from the offering of such Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters bear to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether
-10-
<PAGE> 11
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VIII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amounts paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraphs shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VIII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten and distributed to the public by such
Underwriter were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' respective
obligations to contribute pursuant to this Article VIII are several, in
proportion to the respective principal amounts of Securities purchased by each
of such Underwriters, and not joint. The remedies provided for in this Article
VIII are not exclusive and shall not limit any rights or remedies that may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Article
VIII and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by any
Underwriter or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its directors or officers or any
person controlling the Company and (iii) acceptance of any payment for any of
the Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Company, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading in securities generally on the New York Stock Exchange or the American
Stock Exchange shall have been suspended or materially limited, (ii) trading of
any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any material outbreak or
escalation of hostilities or other calamity and (b) in the case of any of the
events specified in clauses (i) through (iv), such event, singly or together
with any other such event, makes it, in the Manager's reasonable judgment,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
-11-
<PAGE> 12
X.
If as of the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase the Securities that it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of the
Securities that such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate principal amount
of the Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of the
Securities set forth opposite their names in Schedule II bears to the aggregate
principal amount of the Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Securities that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of the Securities that any
Underwriter has agreed to purchase pursuant to Schedule II be increased pursuant
to this Article X by an amount in excess of one-tenth of such amount without the
written consent of such Underwriter. If on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of the Securities with respect to which such default occurs is
more than one-tenth of the aggregate principal amount of the Securities to be
purchased, and arrangements satisfactory to the Underwriters and the Company for
the purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the
Underwriters or the Company shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
-12-
<PAGE> 13
DELPHI AUTOMOTIVE SYSTEMS
CORPORATION
By:
-----------------------
[Name of Managing Underwriter]
Acting on behalf of itself
and the several
Underwriters named in
Schedule II hereto.
By:
-----------------------
-13-
<PAGE> 14
, 1999
Delphi Automotive Systems Corporation
5725 Delphi Drive
Troy, MI 48098
Dear Sirs:
We (the "Underwriters") understand that Delphi Automotive Systems
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
$ aggregate principal amount of % [title of issue] Due
(the "Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to sell and we agree
to purchase, severally and not jointly, the principal amounts of such Securities
set forth below opposite our names at % of their principal amount and
accrued interest, if any, from , 1999 to the date of payment and
delivery:
NAME OF UNDERWRITER PRINCIPAL AMOUNT
- ------------------- ----------------
$
=====================
The Underwriters will pay for such Securities upon delivery thereof at
the offices of at a.m. (New York time) on
, 1999, as shall be designated by the Manager. The Securities
shall have the terms set forth in the Company's Prospectus Supplement dated
, 19 relating to the Securities and the Prospectus dated
, 19 , particularly as follows:
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Other Principal Terms:
-14-
<PAGE> 15
All the provisions contained in the document entitled "Delphi
Automotive Systems Corporation Form of Underwriting Agreement" dated , 1999,
a copy of which we have previously received, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein. The
term "Manager" as used therein, for purposes of this Agreement, means [name of
Underwriter].
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below. This Agreement may be
signed in any number of counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument.
Very truly yours,
[Name of Manager]
On behalf of itself and the other
Underwriters named heretofore
By:
-------------------------
Accepted:
Delphi Automotive Systems Corporation
By:
-------------------------
-15-
<PAGE> 16
Schedule I
DELAYED DELIVERY CONTRACT
, 1999
Dear Sirs:
The undersigned hereby agrees to purchase from Delphi Automotive
Systems Corporation, a Delaware corporation (the "Company") and the Company
agrees to sell to the undersigned $ principal amount of the Company's
[state title of issue] (the "Securities"), offered by the Company's Prospectus
dated , 1999 and Prospectus Supplement dated ,
19 , receipt of copies of which are hereby acknowledged, at a purchase price of
% of the principal amount thereof plus accrued interest, if any, and on
the further terms and conditions set forth in this contract. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery dates set forth below:
DELIVERY PRINCIPAL PLUS ACCRUED
DATE AMOUNT INTEREST FROM:
$
----------------- ------------------ --------------------
$
----------------- ------------------ --------------------
$
----------------- ------------------ --------------------
Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".
Payment for the Securities that the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
, New York, NY, at a.m. (New York time) on the
Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the Delivery Date, in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and
-16-
<PAGE> 17
delivery shall have taken place to the underwriters (the "Underwriters") named
in the Prospectus Supplement referred to above, such part of the Securities as
is to be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the laws of
the State of New York.
Very truly yours,
-----------------------------
(Purchaser)
By:
-------------------------
Title:
------------------------
------------------------------
------------------------------
(Address)
Accepted:
Delphi Automotive Systems Corporation
By:
--------------------------
Title:
------------------------
-17-
<PAGE> 18
SCHEDULE II
UNDERWRITERS
Underwriter Principal Amount of Securities to be Purchased
- ----------- ----------------------------------------------
[insert names]
Aggregate Principal Amount............... $
-----------------------
-18-
<PAGE> 1
EXHIBIT 5
[Drinker Biddle & Reath Letterhead]
March 25, 1999
Delphi Automotive Systems Corporation
5725 Delphi Drive
Troy, Michigan 48098
Re: Delphi Automotive Systems Corporation
Registration Statement on Form S-3
(Registration No. 333-73285)
Ladies and Gentlemen:
We have acted as counsel to Delphi Automotive Systems Corporation (the
"Company") in connection with the preparation and filing with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), of the Company's Registration Statement (Registration No.
333-73285) (the "Registration Statement") on Form S-3 and the prospectus
included therein (the "Prospectus"), relating to the proposed issuance of debt
securities of the Company (the "Securities") pursuant to the Indenture (the
"Indenture") to be entered into by the Company and The First National Bank of
Chicago, as trustee (the "Trustee") in amounts, at prices and on terms to be
determined at the time of offering.
All terms used herein have the meanings assigned to them in the
Registration Statement unless otherwise defined herein.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such corporate records and other
agreements, documents and instruments, and of such certificates or comparable
documents of public officials and officers and representatives of the Company,
and have made such inquiries of such officers and representatives and have
considered such matters of law as we have deemed appropriate as the basis for
the opinions hereinafter set forth.
In all cases, we have assumed the legal capacity of each natural person
signing the Registration Statement and any other documents and instruments that
we have examined, the genuineness of signatures, the authenticity of documents
submitted to us as originals, the conformity to authentic original documents of
documents submitted to us as copies and the accuracy and completeness of all
corporate records and other information made available to us by the Company.
As to questions of fact material to this opinion, we have relied upon
the accuracy of the certificates and other comparable documents of officers and
representatives of the Company, upon statements made to us in discussions with
the Company's management and upon
<PAGE> 2
Delphi Automotive Systems Corporation
March 25, 1999
Page 2
certificates of public officials. Except as otherwise expressly indicated, we
have not undertaken any independent investigation of factual matters.
Based on the foregoing, and subject to the qualifications, limitations
and assumptions stated herein, in our opinion:
Assuming that the Indenture is duly executed and delivered by the
Company and duly authorized, executed and delivered by the Trustee, when (i) the
terms of the Securities and their issue and sale have been duly established in
conformity with the Indenture so as not to violate any applicable law or
agreement or instrument then binding on the Company and (ii) the Securities have
been duly executed and authenticated in accordance with the terms of the
Indenture and issued and sold as contemplated by each of the Registration
Statement, the Prospectus, any prospectus supplement relating to such Securities
and the Indenture, such Securities will be validly issued and will constitute
valid and binding obligations of the Company enforceable against the Company in
accordance with their terms, except as may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the rights of creditors generally and
by general principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness), whether considered in
a proceeding at law or in equity.
Furthermore, we advise you that:
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Opinions" in the Prospectus. In giving such consent, we do not thereby concede
that we are within the category of persons whose consent is required under
Section 7 of the Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ Drinker Biddle & Reath LLP
DRINKER BIDDLE & REATH LLP
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the inclusion or incorporation by reference in this Amendment
No. 1 to Registration Statement No. 333-73285 of Delphi Automotive Systems
Corporation on Form S-3 of our report dated January 20, 1999 (February 5, 1999
as to Note 17), appearing in the Annual Report on Form 10-K of Delphi Automotive
Systems Corporation for the year ended December 31, 1998 and to the reference to
us under the heading "Experts" in the Prospectus, which is part of such
Registration Statement.
/s/ Deloitte & Touche LLP
Detroit, Michigan
March 25, 1999
