As filed with the Securities and Exchange Commission on October 1, 1999.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-1004
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 38-3430473
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5725 Delphi Drive
Troy, Michigan 48098 48098
- -------------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
DELPHI AUTOMOTIVE SYSTEMS
DEFERRED COMPENSATION PLAN FOR EXECUTIVE EMPLOYEES
----------------------------------------------------
(Full title of the plan)
ALAN S. DAWES, CHIEF FINANCIAL OFFICER AND VICE PRESIDENT
Delphi Automotive Systems Corporation
5725 Delphi Drive, Troy Michigan 48098
--------------------------------------------------------
(Name and address of agent for service)
(248) 813-2000
-------------------------------------
(Telephone number, including area code)
CALCULATION OF REGISTRATION FEE
==============================================================================
Proposed Proposed
maximum maximum
Amount offering aggregate Amount of
Title of securities to be price per offering registration
to be registered registered share price(2) fee
- ------------------------ -------------- --------- ------------ ------------
Deferred Compensation
Obligations(1) $15,000,000 100% $15,000,000 $4,170.00
================================================================================
(1) The Deferred Compensation Obligations are unsecured obligations of Delphi
Automotive Systems Corporation to pay deferred compensation in the future
in accordance with the terms of the Deferred Compensation Plan for
Executive Employees.
(2) Estimated solely for the purpose of determining the registration fee.
1
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are incorporated by reference in this
registration statement:
(a) The Annual Report on Form 10-K for the year ended December 31,
1998, (hereinafter referred to as "1998 Form 10-K") filed by Delphi Automotive
Systems Corporation (hereinafter sometimes referred to as "Delphi" or the
"Corporation") with the Securities and Exchange Commission (hereinafter referred
to as the "Commission") pursuant to Section 13(a) of the Securities Exchange Act
of 1934, as amended (the "1934 Act");
(b) The Current Reports on Form 8-K dated April 12, 1999, April 15,
1999, April 28, 1999, and May 28, 1999 filed by the Corporation pursuant to
Section 13(a) of the 1934 Act;
(c) The Quarterly Reports on Form 10-Q for the quarters ended March 31,
1999 and June 30, 1999 filed by the Corporation pursuant to Section 13(a) of the
1934 Act;
(d) The description of Delphi's Common Stock contained in Delphi's
registration statement on Form S-1, Registration No. 333-67333; and
(e) Delphi's registration statement on Form 8-A, filed with the
Commission on January 27, 1999.
All documents subsequently filed by the Corporation pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part
thereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein by reference modifies or supersedes such prior statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Under the terms of the Delphi Automotive Systems Deferred Compensation
Plan for Executive Employees (the "Plan"), eligible employees (each a
"Participant") of the Corporation (or one of its participating subsidiaries) may
elect to defer from 5% to 100% of cash compensation awards under the Delphi
Automotive Systems 1999 Annual Incentive Plan. The amount of Annual Incentive
Plan awards deferred pursuant to such elections are referred to herein as
"Deferred Compensation Obligations." The Deferred Compensation Obligations are
unsecured general obligations of the Corporation to pay the deferred
compensation in the future in accordance with the terms of the Plan and rank
equally with other unsecured and unsubordinated indebtedness of the Corporation
from time to time outstanding. The Corporation does not concede that the
Deferred Compensation Obligations are "securities," under the Securities Act of
1933 or any other law but provides the information in this Registration
Statement solely for the convenience of Participants. The complete text of the
Plan is attached as Exhibit 4.3 to this Registration Statement.
2
<PAGE>
PART II (continued)
The amount of annual incentive awards to be deferred by a Participant
("Deferral") will be credited with earnings and investment gains and losses by
assuming that the Deferral was invested in one or more investment alternatives
selected by such Participant in accordance with the terms of the Plan. Deferrals
will not, however, be invested in the investment alternatives available under
the Plan. Investment alternatives include a Corporation common stock plan,
United States Treasury Notes plan, and large cap index plan. Unless otherwise
determined by the Plan Administrator (and which may, if appropriate, amend this
Registration Statement accordingly), Deferrals will be denominated and paid
solely in United States dollars.
The Deferred Compensation Obligations are payable upon termination of
employment or on a date or dates selected by the Participant in accordance with
the terms of the Plan, subject to exceptions for unscheduled distributions,
hardship or death. The Corporation may also withhold amounts for taxes or reduce
Deferred Compensation Obligations by an amount a participant owes to the
Corporation for any reason. The Deferred Compensation Obligations are payable in
the form of a lump sum or in installments, in accordance with the terms of the
Plan. If an unscheduled distribution is made, the Participant will forfeit to
the Corporation 10% of the amount of the unscheduled distribution.
The Corporation reserves the right to amend or terminate the Plan at
any time, except that no such amendment or termination may adversely affect the
right of a Participant to the balance of his or her Deferrals as of the date of
such amendment or termination.
Generally, a Participant's right or the right of any other person to
receive payment of Deferred Compensation Obligations cannot be assigned,
alienated, sold, garnished, transferred, pledged or encumbered except by written
designation of a beneficiary under the Plan.
The Deferred Compensation Obligations are not convertible into any
security of the Corporation. The Deferred Compensation Obligations will not have
the benefit of a negative pledge or any other affirmative or negative covenant
on the part of the Corporation. No trustee has been appointed having the
authority to take action with respect to the Deferred Compensation Obligations,
and each Participant will be responsible for acting independently with respect
to, among other things, the making of elections and the giving of notices.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Corporation's Amended and Restated Certificate of Incorporation
provides, as authorized by the Delaware General Corporation Law, that a director
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for any act or omission not in good faith
or which involved intentional misconduct or a knowing violation of law, (iii)
for unlawful payments of dividends or unlawful stock repurchases or redemptions
as provided in Section 174 of the Delaware General Corporation Law; or (iv) for
any transaction from which the director derived an improper personal benefit.
3
<PAGE>
PART II (continued)
Delphi 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 reasonably 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 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.
The Corporation's Amended and Restated Certificate of Incorporation and
Bylaws provide for the indemnification of officers and directors to the fullest
extent permitted by the General Corporation Law. 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. All of the Corporation's officers and directors
will be covered by insurance policies maintained by the Corporation against
certain liabilities for actions taken in their capacities as such, including
liabilities under the Securities Act of 1933 (the "1933 Act").
Item 7. Exemptions from Registration Claimed.
Not applicable.
4
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PART II (concluded)
Item 8. Exhibits.
Exhibit Number Page No.
- -------------- --------
4.1 Amended and Restated Certificate of Incorporation of the
Corporation incorporated by reference from Exhibit 3.1 to
the Corporation's Registration Statement on Form S-1,
Registration No. 333-67333............................... n/a
4.2 By-Laws of the Corporation incorporated by reference from
Exhibit 3.2 to the Corporation's Registration Statement
on Form S-1, Registration No. 333-67333.................. n/a
4.3 Delphi Automotive Systems Deferred Compensation Plan For
Executive Employees...................................... 9-16
5 Opinion and consent of Drinker Biddle & Reath LLP, ...... 17
23.1 Consent of Independent Auditors - Deloitte & Touche LLP.. 18
23.2 Consent of Drinker Biddle & Reath LLP included
in Exhibit 5 above....................................... n/a
24 Power of Attorney (included on page 6)................... n/a
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes: (1) to file, during any period
in which offers or sales are being made pursuant to this Registration Statement,
a post-effective amendment to this Registration Statement 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; (2) that, for the purpose of
determining any liability under the 1933 Act, 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; and (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) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) of the 1934 Act 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) Insofar as indemnification for liabilities arising under the 1933 Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the 1933 Act 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 1933 Act
and will be governed by the final adjudication of such issue.
5
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Troy, State of Michigan, on
October 1, 1999.
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
-------------------------------------
(Registrant)
By
/S/ J.T. BATTENBERG III
----------------------------
(J.T. Battenberg III, Chairman
of the Board of Directors, Chief
Executive Officer and President)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on October 1, 1999 by the following
persons in the capacities indicated.
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
hereby constitutes and appoints J.T. Battenberg III and Alan S. Dawes, and each
of them, each acting alone, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, in connection with the registrant's
Registration Statement on Form S-8 under the Securities Act of 1933, as amended,
including, without limiting the generality of the foregoing, to sign the
Registration Statement, including any and all stickers and post-effective
amendments to the Registration Statement, and to sign any and all additional
registration statements relating to the same offering of securities as the
Registration Statement that are filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission and any applicable securities exchange or securities
self-regulatory body, granting unto said attorneys-in-fact and agents, each
acting alone, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
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
(Alan S. Dawes) (Principal Financial Officer)
6
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SIGNATURES (CONTINUED)
/S/PAUL R. FREE Chief Accounting Officer and Controller
- -------------------------------- (Principal Accounting Officer)
(Paul R. Free)
/S/THOMAS H. WYMAN Director
- --------------------------------
(Thomas H. Wyman)
/S/VIRGIS W. COLBERT Director
- --------------------------------
(Virgis W. Colbert)
/S/SHOICHIRO IRIMAJIRI Director
- --------------------------------
(Shoichiro Irimajiri)
/S/THOMAS G. LABRECQUE Director
- --------------------------------
(Thomas G. Labrecque)
/S/SUSAN A. MCLAUGHLIN Director
- --------------------------------
(Susan A. McLaughlin)
/S/OSCAR DE PAULA BERNARDES NETO Director
- -----------------------------
(Oscar De Paula Bernardes Neto)
/S/JOHN D. OPIE Director
- --------------------------------
(John D. Opie)
/S/ROGER S. PENSKE Director
- --------------------------------
(Roger S. Penske)
7
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SIGNATURES (CONCLUDED)
Pursuant to the requirements of the Securities Act of 1933, the administrator of
the Plan has duly caused the Registration Statement to be signed on behalf of
such Plan by the undersigned, thereunto duly authorized, in the City of Troy,
State of Michigan as of October 1, 1999.
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
DEFERRED COMPENSATION PLAN FOR EXECUTIVE EMPLOYEES
By: /S/Diane L. Kaye
-------------------------
Name: Diane L. Kaye
Title Secretary
8
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Exhibit 4.3
DELPHI AUTOMOTIVE SYSTEMS
DEFERRED COMPENSATION PLAN FOR EXECUTIVE EMPLOYEES
ARTICLE I
INTRODUCTION
1.01. Name.
The Plan shall be known as the Delphi Automotive Systems Deferred
Compensation Plan for Executive Employees.
1.02. Purpose.
The purpose of the Plan is to provide Eligible Employees the opportunity
to defer receipt of a portion of their base salary, stock options and/or
awards payable pursuant to the Annual Incentive Plan (AIP), Stock
Incentive Plan (SIP) and Performance Achievement Plan (PAP) (or their
successor plans).
1.03. Effective Date.
The Plan shall be effective October 1, 1999 and shall apply to all
deferrals made pursuant to Article III of the Plan.
ARTICLE II
DEFINITIONS
Unless the context clearly indicates otherwise, the following terms, when used
in capitalized form in the Plan, shall have the meanings set forth below.
2.01. Account. "Account" or "Accounts" shall mean the hypothetical book-entry
Retirement Account and Optional Account(s) established by Delphi
Automotive Systems for a Participant with respect to a Participant's
Deferral.
2.02. Annual Incentive Plan. "Annual Incentive Plan" shall mean the Delphi
Automotive Systems 1999 Annual Incentive Plan (and any successor plan).
2.03. Annual Incentive Plan Award. "Annual Incentive Plan Award" shall mean any
award granted under the Annual Incentive Plan.
2.04. Article. "Article" shall mean an article of the Plan.
2.05. Board. "Board" shall mean the Board of Directors of Delphi Automotive
Systems Corporation.
2.06. Committee. "Committee" shall mean the Executive Compensation Committee of
the Board.
2.07. Corporation. "Corporation" shall mean Delphi Automotive Systems
Corporation and its wholly owned and substantially wholly owned
subsidiaries.
2.08. Deferral. "Deferral" shall mean the deferral with respect to an
Annual Incentive Plan Award and/or Performance Achievement Plan Award
elected by a Participant in accordance with Section 3.03.
2.09. Eligible Employee. "Eligible Employee" shall mean a full time, active
eligible executive employee of the Corporation as chosen by the Plan
Administrator.
2.10. Financial Hardship. "Financial Hardship" shall mean a reason given by a
Participant for a withdrawal that (1) is necessary to meet immediate and
heavy financial needs, (2) is for an amount required to meet the immediate
financial need created by the hardship, and (3) is for an amount not
reasonably available from other resources.
2.11. Optional Account. "Optional Account" shall mean an Account scheduled by a
Participant for distribution at a point in time other than Retirement.
2.12. Participant. "Participant" shall mean each Eligible Employee who makes an
election pursuant to Section 3.03 and maintains an Account(s) pursuant to
Section 4.01.
2.13 Performance Achievement Plan. "Performance Achievement Plan" shall mean
the Delphi Automotive Systems 1999 Performance Achievement Plan (and any
successor plan).
2.14. Person. "Person" shall mean any individual, firm, corporation,
partnership, joint venture, association, trust, or other entity.
2.15. Plan. "Plan" shall mean the Delphi Automotive Systems Deferred
Compensation Plan for Executive Employees, as it may be amended from time
to time.
9
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2.16. Plan Administrator. "Plan Administrator" shall mean Delphi Automotive
Systems or such other Person designated by the Committee to serve as
administrator of the Plan. The address of the Plan Administrator is:
5725 Delphi Drive
Mail Code 483.400.606
Troy, MI 48098
2.17. Plan Year."Plan Year" shall mean each calendar year that the Plan is in
effect.
2.18. Retirement. "Retirement" shall mean a separation from service from the
Corporation under the Delphi Automotive Systems Retirement Program for
Salaried Employees, including Total and Permanent Disability Retirement.
2.19. Retirement Account. "Retirement Account" shall mean the Account scheduled
for distribution at Retirement.
2.20. S-SPP. "S-SPP" shall mean the Delphi Automotive Systems Savings-Stock
Purchase Program for Salaried Employees in the United States, as amended
from time to time.
2.21. Section. "Section" shall mean a section of the Plan.
2.22 Stock Incentive Plan. "Stock Incentive Plan" shall mean the Delphi
Automotive Systems 1999 Stock Incentive Plan (and any successor plan).
2.23. Termination. "Termination" shall mean a separation from service with the
Corporation for any reason other than Retirement or death.
ARTICLE III
ELIGIBILITY AND ELECTION TO DEFER
3.01. Eligibility.
Eligible Employees shall be eligible to make the elections described in
this Article III.
3.02. Deferral Amounts.
(a)Each Participant shall be eligible to defer pursuant to the terms of
this Plan a minimum of 5% up to a maximum of 100% of an Annual
Incentive Plan Award and/or a Performance Achievement Plan Award;
provided that any such Deferral must be made in multiples of 5% or any
other increment as permitted by the Plan Administrator.
(b)Deferral elections relating to compensation other than Annual
Incentive Plan and Performance Achievement Plan Awards may be permitted
by the Plan Administrator from time to time, and will be communicated
to eligible participants by Prospectus in sufficient time to make such
elections.
3.03. Election to Defer.
(a)A Participant who wishes to defer all or part of an Annual Incentive
Plan Award and/or Performance Achievement Plan Award shall submit an
election to the Plan Administrator or its agent that satisfies each of
the requirements set forth in paragraphs (1) through (6) below:
(1) Deadline for Submitted Election. An election with respect to a
Deferral shall be submitted on or before 5:00 p.m. (Detroit Michigan
time) on the last business day of the Deferral election period chosen
by the Plan Administrator and notified to Eligible Employees.
(2) Form of Election. A Participant's Deferral election shall be
submitted to the Plan Administrator in writing, electronically, or
telephonically, as approved by the Plan Administrator.
(3) Amount of Deferral. The Deferral election shall specify the
percentage of the Participant's Annual Incentive Award and/or
Performance Achievement Plan Award that the Participant wishes to
defer.
(4) Selection of Accounts and Distributions. The Deferral election
shall specify the Account(s) established under Section 4.01 that shall
be credited with the amounts deferred by the Participant, the year the
distribution shall be made from such Accounts, and whether the
distribution is to be made, in the event of the Retirement Account, in
a lump sum or installments, until paid out pursuant to Article V.
(5) Selection and Investment Options. The Deferral election shall
specify the Participant's selection of the investment option(s) for the
Annual Incentive Award. The returns on the Deferral(s) will be
calculated as if invested in the investment option(s) selected by the
Participant as provided in Article IV.
10
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(6) Election Irrevocable. Except as otherwise specifically provided in
the Plan, the Deferral amount, the distribution commencement date, and
the method of distribution elected by a Participant with respect to a
Deferral in accordance with paragraphs (3) through (5) above are
irrevocable and are not subject to modification at any time.
3.04. Designation of Beneficiaries.
A Participant who makes a Deferral election pursuant to Section 3.03 may
designate one or more beneficiaries. The beneficiaries for a Participant's
Plan Account(s) will be the same as the beneficiaries chosen for the
Delphi Automotive Systems incentive plans. Notwithstanding Section
3.03(a)(6), a Participant may, at any time, revoke a prior designation and
make a new designation pursuant to this Section 3.04. Any such designation
or revocation shall be in writing and shall be submitted to the Plan
Administrator prior to the Participant's death in such form and in such
manner as is acceptable to the Plan Administrator.
ARTICLE IV
ACCOUNTS AND INVESTMENT OPTIONS
4.01. Establishment of Accounts.
The Corporation shall maintain separate bookkeeping accounts, hypothetical
in nature, for each Participant. Each Participant shall be entitled to
establish up to three separate Accounts for each of the Annual Incentive
Plan and Performance Achievement Plan. One such Account must be
established for distribution upon the earlier of Termination of employment
or Retirement of the Participant (the Retirement Account) and two
additional Accounts may be established (the Optional Accounts) and shall
be payable upon the earlier of the Participant's Termination of employment
or a specific year selected by the Participant. The year selected by the
Participant for distribution of an Optional Account must be at least two
years after the first calendar year in which the Participant makes the
Deferral. Such Accounts shall be credited with the earnings (or losses) on
such Deferrals. At no time may a Participant have more than three Accounts
outstanding at any one time for each of the Annual Incentive Plan Awards
and Performance Achievement Plan Awards.
4.02. Nature of Accounts and Earnings.
Each Account and the related Deferrals and returns thereon under this
Article IV shall be hypothetical in nature and shall be maintained by the
Corporation for bookkeeping purposes only. The Accounts established under
the Plan shall hold no actual funds or assets. The right of any Person to
receive one or more distributions under the terms of the Plan shall be an
unsecured claim against the general assets of the Corporation. Any
liability of the Corporation to any Participant, former Participant, or
beneficiary with respect to a right to a distribution shall be based
solely upon contractual obligations created by the Plan. Neither the
Corporation, the Board, the Committee, the Plan Administrator, nor any
other Person shall be deemed to be a trustee of any amounts to be paid
under the Plan. Nothing contained in the Plan, and no action taken
pursuant to its provisions, shall create or be construed to create a trust
of any kind, or a fiduciary relationship, between the Corporation and a
Participant or any other Person except and only to the extent required by
law.
4.03 Investment Options.
(a) General. The Plan Administrator has the sole discretion to determine
the investment options available as the measurement mechanism for
Deferrals under the Plan, the manner and extent to which elections may be
made, the method of valuing the various investment options and Account(s)
and the method of crediting the Account(s) with, or making other
adjustments as a result of dividend equivalents, interest equivalents or
other earnings, losses, or returns on such Accounts.
(b) Investment Options - Annual Incentive Plan. Unless otherwise
determined by the Plan Administrator, the investment options available as
the measurement mechanism for Annual Incentive Plan Deferrals under the
Plan shall be:
(1)120% of 10-Year United States Treasury Notes - The crediting
rate for this investment option will be set annually in January.
It will be based on 120% of the twelve-month average of closing
rates of the first trading day of the preceding twelve months of
the 10-Year United States Treasury Notes.
(2)Large Cap Index Option - The crediting rate for this investment
option will be based on the performance of the Promark Large Cap
Index Fund option available in the S-SPP.
(3)Delphi Common Stock - The crediting rate for this investment
option will be based on the price performance of Delphi Common
Stock and the dividends thereon.
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(c) Investment Options - Performance Achievement Plan. Unless otherwise
determined by the Plan Administrator, the investment options available as
the measurement mechanism for Performance Achievement Plan Deferrals under
the Plan shall be:
(1)Delphi Common Stock - The crediting rate for this investment
option will be based on the price performance of Delphi Common
Stock and the dividends thereon.
Performance Achievement Plan Awards payable in Delphi Common Stock may
only be deferred into the Delphi Common Stock.
(d) Methodology. Unless otherwise determined by the Plan Administrator,
the methodology for valuing the various investment options and the
Account(s) and for calculating amounts to be credited or debited or other
adjustments, including transfers between investment options for Annual
Incentive Plan Deferrals, to any Account(s) with respect to any investment
options shall be the same as that used under the Delphi Automotive Systems
S-SPP. The investment options and the Account(s) shall be revalued on a
daily basis.
(e) No Ownership Rights. Investment options available under the Plan shall
be used solely for measuring the value of the Account(s) and accounting,
on a book entry basis, as if the deferred amounts had been invested in
actual investments, but no such investments shall be made on behalf of
Participants. Participants shall not have any voting rights or any other
ownership rights with respect to the investment options selected as the
measuring mechanism for their Account(s).
4.04 Treatment of Deferrals.
The returns on the Deferral(s) shall be calculated as if invested in the
investment options selected by the Participant. For Annual Incentive Plan
Deferrals, any investment option elections made by a Participant shall
remain in effect until changed by the Participant; and unless otherwise
determined by the Plan Administrator, any Participant may change his or
her investment option election or transfer deferred amounts between
investment options pursuant to Section 4.05. Changes must be communicated
by the Participant to the Plan Administrator or its designated agent and
shall be effective at the close of business on the New York Stock Exchange
(usually 4:00 p.m. New York City time) on the last business day of the
month in which the Participant's direction was received. For Performance
Achievement Plan Deferrals, transfers are not permitted between investment
options
Each Participant is solely responsible for the selection of his or her
investment options. Delphi Automotive Systems, the Plan Administrator and
other employees and agents of the Corporation are not empowered to advise
a Participant as to the manner in which investments should be made. The
fact that an investment option is available for investment under the Plan
shall not be construed as a recommendation for investment in that option.
It should be noted that market value and the rate of return on each
investment option will fluctuate over time and in varying degrees.
Accordingly, the proceeds if any realized from such investments will
depend on the prevailing market value of the investments at a particular
time, which may be more or less than the amount expended initially. There
is no assurance that any of the investment options will achieve their
objectives.
4.05 Transfers Within an Account(s) for Annual Incentive Plan Deferrals.
(a) General. A Participant or the legal beneficiary or legal
representative of a deceased Participant may transfer amounts credited to
an Account(s) among the investment options available under the Plan. No
transfers relating to a particular Deferral may occur on or after the
scheduled distribution date for the Deferral.
(b) Timing. A Participant may request a transfer from one investment
option to another at any time and such transfer shall be effective at the
close of business of the New York Stock Exchange (usually 4:00 p.m. New
York City time) on the last business day of the month of the transfer
request.
(c) Amount of Transfer. Any transfer shall be in a specified whole
percentage of the amounts contained in the investment option from which
the transfer is being made.
ARTICLE V
DISTRIBUTIONS
5.01. Exclusive Entitlement to Distribution.
A Participant's Deferral election pursuant to Section 3.03 shall
constitute a waiver of such Participant's right to receive the amount
deferred and an agreement to receive in lieu thereof the amounts payable
to such Participant at the times and in the amounts specified in this
Article V. No other amounts shall be due under the Plan, or otherwise as a
result of a Participant's Deferral election pursuant to Section 3.03.
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5.02. Method of Distribution.
(a)Distributions from the Retirement Account will be made solely in cash
for distributions relating to Annual Incentive Plan Deferrals and in
the form of shares of stock for distributions relating to Performance
Achievement Plan Deferrals pursuant to the method provided for in
either paragraph (1) or (2) below, that is selected by the Participant
in accordance with Section 3.03(a)(4). A Participant may select either
method of distribution with respect to such Account.
(1)Lump Sum. A Participant may elect to receive a distribution with
respect to the Retirement Account in a lump sum. The lump sum shall
be payable to the Participant no later than April 30 of the calendar
year following the calendar year in which the Retirement occurs. The
lump sum shall equal the balance in the Participant's Retirement
Account determined as of the last business day of February prior to
payment.
(2)Installments. A Participant may elect to receive a distribution
with respect to the Retirement Account in annual installments for a
period of five or ten years (or any other schedule as determined by
the Plan Administrator) as elected by the Participant. The annual
installments shall be payable to the Participant beginning no later
than April 30 of the calendar year following the calendar year in
which the Retirement occurs. If annual installments are elected, the
amount of the first payment shall be a fraction of the value of the
Participant's Account as of the last business day of February prior
to payment, the numerator of which is one and the denominator of
which is the total number of installments elected. The amount of
each subsequent payment shall be a fraction of the value as of the
last business day of February prior to payment, the numerator of
which is one and the denominator of which is the total number of
installments elected minus the number of installments previously
paid.
(b)In the case of a distribution from an Optional Account, such
distribution shall be made as a lump sum no later than April 30 of the
year selected by the Participant for receiving a distribution. The lump
sum shall equal the balance in the Participant's Optional Account
determined as of the last business day of February prior to payment.
(c)In the case of a Participant's Termination of employment from the
Corporation, all Accounts will be distributed as a lump sum within 60
days of such Termination. The lump sum shall equal the balance in the
Participant's Accounts determined as of the date of such Termination.
(d)In the case of a Participant's death prior to Retirement, all Accounts
shall be distributed as a lump sum no later than April 30 of the
calendar year following the calendar year in which the death occurs, or
if elected at the time of Deferral, equal distribution over five years
if the Participant's beneficiary is a spouse or a trust. If annual
installments are elected, the amount of the first payment shall be a
fraction of the value of the Participant's deferred compensation
Account as of the last business day of February prior to payment, the
numerator of which is one and the denominator of which is the total
number of installments elected. The amount of each subsequent payment
shall be a fraction of the value as of the last business day of
February prior to payment, the numerator of which is one and the
denominator of which is the total number of installments elected minus
the number of installments previously paid.
5.03. Unscheduled Distributions, Forfeiture and Financial Hardships.
(a)At any time, a Participant may elect, with the prior written consent
of the Plan Administrator or its designated agent, to make an
unscheduled withdrawal from an Account by selecting an amount by which
the Account is to be reduced. The amount distributed to the Participant
shall be not more than 90% of the withdrawal amount requested, as
determined by the Plan Administrator. Such distribution shall be paid
to the Participant not later than 60 days following the filing of such
election. If a Participant receives a distribution pursuant to this
subsection, the remaining 10% requested but not distributed shall be
permanently forfeited to the Corporation and shall not be paid to, or
in respect of, the Participant. In addition to the forfeiture provided
immediately above, a Participant receiving a distribution under this
subsection shall not be permitted to make any contributions to the Plan
during the 12 months following the month in which the election to make
the unscheduled distribution is made.
(b)A Participant shall be allowed to take a distribution from one or more
Account(s), with the prior written consent of the Plan Administrator
and the Vice-President of Human Resources, if a sudden and unforeseen
Financial Hardship occurs. A Participant shall be able to apply to
withdraw the amount needed for the Financial Hardship up to the Account
balance. If approved by the Plan Administrator and the Vice-President
of Human Resources, such distribution shall be paid to the Participant
not later than 60 days following the filing of such election. A
Participant receiving a distribution under this subsection shall not be
permitted to make any contributions to the Plan during the 12 months
following the month in which the election to make the Financial
Hardship distribution is made.
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(c)Distributions pursuant to Sections 5.03(a) and (b) shall be made in
cash for Annual Incentive Plan Deferrals and in the form of shares of
stock for Performance Achievement Plan Deferrals.
(d)Distributions under this Article V shall be reduced by the amount that
a Participant owes the Corporation, or any subsidiary thereof, due to
any reason, including taxes, benefit overpayments, wage overpayments,
and amounts due under all Corporation incentive compensation plans. The
Participant will be relieved of liability equal to the payment to the
Corporation.
ARTICLE VI
MISCELLANEOUS
6.01. Plan Administration.
(a)In General. The Committee has full power, authority and discretion to
construe, interpret and administer the Plan. Unless otherwise
specifically provided in the Plan, the Committee may delegate to the
Plan Administrator all authority granted with respect to the Plan.
Except to the extent provided otherwise: (1) the Plan Administrator
shall have the discretionary authority to interpret, apply and construe
the Plan and to decide any and all matters arising under the Plan,
including without limitation the right to determine eligibility for
participation, investment options, the method of valuing investment
options and Plan accounts, the method of crediting Plan Accounts with,
or making adjustments as a result of, dividend and interest equivalents
or returns on such Accounts, benefits, and other rights under the Plan;
the right to determine whether any election or notice requirement or
other administrative procedure under the Plan has been adequately
observed; the right to remedy possible ambiguities, inconsistencies, or
omissions by general rule or particular decision; and the right
otherwise to interpret the Plan in accordance with its terms; and (2)
the Plan Administrator's determination on any and all questions arising
out of the interpretation or administration of the Plan shall be final,
conclusive, and binding on all parties.
(b)Amendment, Suspension, and Termination of Plan. The Committee may
amend, suspend, or terminate the Plan at any time. In addition, the
Committee may also, at any time, terminate in whole or in part any
Account(s) and make an immediate lump sum distribution of the amounts
in such Account(s) to the Participants affected thereby.
(c)Termination. Upon termination or suspension of the Plan, all amounts
deferred before the date of termination or suspension, and any rights
to distributions with respect to such deferred amounts, shall continue
to be governed by the provisions of the Plan, subject to Section
6.01(b). Notwithstanding anything to the contrary in this subsection
(c) or subsection (b) above, no amendment, suspension, or termination
of the Plan shall reduce the benefits under the Plan which have accrued
to the Participant prior to the date of such amendment, suspension, or
termination.
6.02. Appeal Procedure.
A claimant who has been denied a claim for benefits under the Plan, in
whole or in part, may, within a period of 60 days following receipt of the
denial, request a review of such denial by the Plan Administrator by
filing a written notice with the Plan Administrator or its designate. In
connection with an appeal, the claimant (or his or her authorized
representative) may review pertinent documents and may submit evidence and
arguments in writing to the Plan Administrator. The Plan Administrator may
decide the questions presented by the appeal and shall issue to the
claimant a written notice setting forth: (1) the specific reasons for the
decision and (2) specific reference to the pertinent provisions of the
Plan or the absence of pertinent provisions on which the decision is
based. The notice shall be issued within a period of time not exceeding 90
days after receipt of the request for review; provided that, if special
circumstances should require, such period of time may be extended for an
additional 60 days commencing at the end of the initial 90-day period. The
decision of the Plan Administrator shall be final and conclusive.
6.03. Rights Not Assignable.
No distribution due any Participant, beneficiary or Person under the Plan
shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, or charge in any other way. Any
attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber,
or charge such distribution in any other way shall be void.
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6.04. Inability to Locate Participants and Beneficiaries.
Each Participant or beneficiary entitled to receive a distribution under
the Plan shall keep the Plan Administrator advised of his or her current
address. If the Plan Administrator is unable for a period of 24 months to
locate a Participant or beneficiary to whom a distribution is due under
the Plan, commencing with the first day of the month as of which such
distribution first comes due, the total amount payable to such Participant
or beneficiary shall be forfeited to the Corporation. Should such
Participant or beneficiary contact the Plan Administrator requesting a
distribution thereafter, the Plan Administrator shall, upon satisfaction
of its requests for any corroborating documentation, restore and pay the
forfeited distribution in a lump sum, the value of which shall not be
adjusted to reflect any interest or other type of investment return for
the period commencing on the date of forfeiture until distribution of such
lump sum.
6.05. Withholding Taxes.
The Plan Administrator may make any appropriate arrangements to deduct
from all Deferrals and distributions hereunder any taxes that the Plan
Administrator reasonably determines to be required by law to be withheld
from such Deferrals and distributions.
6.06. Certain Rights Reserved.
Nothing in the Plan shall confer upon any employee of the Corporation or
other Person the right: (1) to continue in the employment or service of
the Corporation or affect any right that the Corporation may have to
terminate the employment or service of (or to demote or to exclude from
future participation in the Plan) any such employee or other Person at any
time for any reason; or (2) to participate in the Plan.
6.07. Severability.
If any provision of the Plan is held unlawful or otherwise invalid or
unenforceable in whole or in part, such unlawfulness, invalidity, or
unenforceability shall not affect any other provision of the Plan or part
thereof, each of which shall remain in full force and effect. If the
making of any distribution or the provision of any other benefit required
under the Plan is held unlawful or otherwise invalid or unenforceable,
such unlawfulness, invalidity or unenforceability shall not prevent any
other distribution or benefit from being made or provided under the Plan,
and, if the making of any distribution in full or the provision of any
other benefit required under the Plan in full would be unlawful or
otherwise invalid or unenforceable, then such unlawfulness, invalidity, or
unenforceability shall not prevent such distribution or benefit from being
made or provided in part, to the extent that it would not be unlawful,
invalid, or unenforceable, and the maximum distribution or benefit that
would not be unlawful, invalid, or unenforceable shall be made or provided
under the Plan.
6.08. Titles and Headings Not to Control.
The titles to Articles and the headings of Sections, subsections,
paragraphs, and subparagraphs in the Plan are placed herein for
convenience of reference only and, as such, shall have no force or effect
in the interpretation of the Plan.
6.09. Governing Law.
The Plan and all determinations made and actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of
Michigan.
6.10. Limitations.
A Participant shall not have any interest in any Deferral credited to his
or her Account(s) until it is paid in accordance with the Plan. All
amounts deferred under the Plan shall remain the sole property of the
Corporation, subject to the claims of its general creditors and available
for use for whatever purposes are desired. With respect to the Deferrals,
a Participant shall be merely a general creditor of the Corporation and
the obligation of the Corporation hereunder shall be purely contractual
and may or may not be funded or secured in any way.
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6.11. Statements of Account.
Account statements shall be sent to Participants as soon as practicable on
a quarterly basis following the close of each three-month valuation
period.
6.12. Administration Expense.
The entire expense of offering and administering the Plan shall be borne
by the Corporation unless otherwise determined by the Plan Administrator.
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EXHIBIT 5
LAW OFFICES
DRINKER BIDDLE & REATH LLP
One Logan Square
18th and Cherry Streets
Philadelphia, PA 19103-6996
Telephone: (215) 988-2700
October 1, 1999
Delphi Automotive Systems Corporation
5725 Delphi Drive
Troy, Michigan 48098
Gentlemen:
We have acted as counsel to Delphi Automotive Systems Corporation, a
Delaware corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission of the Company's Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933, as amended, relating to up to $15,000,000 of the Company's Deferred
Compensation Obligations (the "Deferred Compensation Obligations") payable under
the Delphi Automotive Systems Deferred Compensation Plan for Executive Employees
(the "Plan").
In that capacity, we have examined the originals or copies,
certified or otherwise identified to our satisfaction, of the Certificate of
Incorporation and the By-laws of the Company, as amended through the date
hereof, resolutions of the Company's Board of Directors, and such other
documents and corporate records relating to the Company and the Deferred
Compensation Obligations as we have deemed appropriate. The opinions expressed
herein are based exclusively on the General Corporation Law of the State of
Delaware. In that connection, we note that the Plan provides that it is governed
by the laws of the State of Michigan. We are not familiar with those laws and
express no opinion about them. For purposes of this opinion, we have assumed
that the Plan will be governed by the laws of the Commonwealth of Pennsylvania.
In all cases, we have assumed the legal capacity of each natural
person signing any of the documents and corporate records examined by us, 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.
Based upon the foregoing and consideration of such questions of law
as we have deemed relevant, we are of the opinion that the Deferred Compensation
Obligations will be, when created in accordance with the terms of the Plan,
valid and binding obligations of the Company, enforceable in accordance with the
terms of the Plan, except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws of general applicability relating to or affecting
creditors' rights or by general equity principles.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent we do not admit that we come
within the categories of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended.
Very truly yours,
/S/ DRINKER BIDDLE & REATH LLP
---------------------------------------------
DRINKER BIDDLE & REATH LLP
(A Pennsylvania Limited Liability Partnership)
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of Delphi Automotive Systems Corporation 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.
/S/ Deloitte & Touche LLP
Detroit, Michigan
October 1, 1999
18
