As filed with the Securities and Exchange Commission on February 5, 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
STOCK INCENTIVE PLAN
------------------------------------
(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(1) share(2) price(2) fee
------------------------ -------------- --------- ------------ ------------
Common Stock,
$0.01 par value 151,760 shares $17.00 $2,579,920 $717.22
==============================================================================
(1)Pursuant to Rule 416(a), this registration statement also registers such
indeterminate number of additional shares as may become issuable under the
plan in connection with stock splits, stock dividends or similar
transactions.
(2)Estimated solely for the purpose of determining the registration fee.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(Not required to be filed as part of the registration statement)
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 prospectus filed by the Registrant on February 5, 1999 pursuant
to Rule 424(b) under the Securities Act of 1933, as amended (the "1933 Act"),
with respect to the registration statement on Form S-1 (Registration No.
333-67333) (hereinafter referred to as "the Registration Statement") which has
been 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 the
Securities Act of 1933, as amended. The consolidated financial statements as of
December 31, 1997 and 1996, and for each of the three years in the period ended
December 31, 1997, incorporated by reference herein from the Registration
Statement, have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report appearing therein, and have been so incorporated in
reliance upon such report given upon the authority of said firm as experts in
accounting and auditing;
(b) The unaudited interim consolidated financial statements as of
September 30, 1998, and for the nine month periods ended September 30, 1998 and
1997, included in the Registration Statement filed by the Corporation with the
Commission pursuant to the 1933 Act.
(c) The description of the Registrant's Common Stock contained in the
Registration Statement.
(d) The Corporation'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 Securities Exchange Act of 1934, as
amended (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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
II-1
<PAGE>
PART II (continued)
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.
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 1933 Act.
II-2
<PAGE>
PART II (continued)
Item 7. Exemptions from Registration Claimed
Not applicable.
Item 8. Exhibits.
Exhibit Number Page No.
- -------------- --------
(4) (a) Amended and Restated Certificate of Incorporation included
as Exhibit 3.1 to the Corporation's Registration Statement
on Form S-1, Registration No. 333-67333..................... N/A
(b) By-Laws included as Exhibit 3.2 to the Corporation's
Registration Statement on Form S-1, Registration No.
333-67333................................................... N/A
(c) Delphi Automotive Systems Stock Incentive
Plan........................................................ II-7
(5)(a) Opinion and consent of Drinker Biddle & Reath LLP, in
respect of the legality of the securities to be registered
hereunder................................................... II-15
(23)(a) Consent of Independent Auditors - Deloitte & Touche LLP..... II-16
(b) Consent of Drinker Biddle & Reath Legal LLP
included in Exhibit 5(a) above.............................. N/A
(24)(a) Power of Attorney (included on page II-5)................... N/A
II-3
<PAGE>
PART II (concluded)
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 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.
II-4
<PAGE>
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 February 4, 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 February 4, 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 Registrants'
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.
II-5
<PAGE>
SIGNATURES (CONCLUDED)
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)
/S/PAUL R. FREE Chief Accounting Officer and Controller
- -------------------------------- (Principal Accounting Officer)
(Paul R. Free)
/S/THOMAS H. WYMAN Director
- --------------------------------
(Thomas H. Wyman)
Director
- --------------------------------
(John F. Smith Jr.)
/S/HARRY J. PEARCE Director
- --------------------------------
(Harry J. Pearce)
/S/J. MICHAEL LOSH Director
- --------------------------------
(J. Michael Losh)
II-6
EXHIBIT 4(c)
DELPHI AUTOMOTIVE SYSTEMS STOCK INCENTIVE PLAN
1. The purposes of the Delphi Automotive Systems Stock Incentive Plan
(this "Plan") are to provide incentive for the creation of stockholder value and
provide employees with the opportunity for long-term capital accumulation
through the grant of options and restricted stock units to acquire shares of
common stock ("Delphi Stock") of Delphi Automotive Systems Corporation
("Delphi," or the "Corporation"). Subject to such additional limitations or
restrictions as may be imposed as provided below, the term "employees" shall
mean persons (a) who are employed by the Corporation or any "subsidiary" (as
such term is defined below), including employees who are also directors of the
Corporation or any such subsidiary, or (b) who accept (or previously have
accepted) employment, at the request of the Corporation, with any entity not
described in (a) above but in which the Corporation has, directly or indirectly,
a substantial ownership interest. For purposes of this Plan, the term
"subsidiary" means (i) a corporation of which capital stock having ordinary
voting power to elect a majority of the board of directors of such corporation
is owned, directly or indirectly, by the Corporation or (ii) any unincorporated
entity in respect of which the Corporation can exercise, directly or indirectly,
comparable control. The rights reserved herein shall, among other things, permit
the Executive Development and Compensation Committee of the Delphi Board of
Directors (the "Committee"), as from time to time constituted pursuant to the
By-Laws of the Corporation, to determine when, and to what extent, individuals
otherwise eligible for consideration shall become or cease to be, as the case
may be, employees for purposes of this Plan and to determine when, and under
what circumstances, any individual shall be considered to have terminated
employment for purposes of this Plan. To the extent determined by the Committee,
the term employees shall be deemed to include former employees and any
beneficiaries thereof.
2. Subject to the provisions of paragraph 10, the aggregate number of
shares of stock with respect to which options and restricted stock units may be
granted under this Plan shall not exceed 85,000,000 shares of Delphi Stock;
provided, however, subject to the provisions of paragraph 10, the maximum number
of shares of stock which may be granted in the form of restricted stock units
under this Plan shall not exceed 8,000,000 shares of Delphi Stock. Subject to
the provisions of paragraph 10, no individual may be granted options in any
calendar year covering more than 1,000,000 shares of Delphi Stock and no
individual may be granted restricted stock units in any calendar year covering
more than 500,000 shares of Delphi Stock. If, prior to June 1, 2004, all or any
portion of an option granted under this Plan shall have expired or terminated
for any reason without having been exercised in full or all or any portion of a
restricted stock unit shall have failed to vest, the corresponding unpurchased
or undelivered shares shall (unless this Plan shall have been terminated) again
become available for grant under the terms of this Plan.
II-7
<PAGE>
3. The Committee may, at such time or times as it may determine prior to
June 1, 2004, establish for any calendar year a maximum number of shares,
consistent with the provisions of paragraph 2, to be awarded as stock options
and restricted stock units for such year. To the extent authorized by the
Committee, the Delphi Strategy Board (the "Strategy Board") may grant options
and restricted stock units, within the maximum number of shares established by
the Committee, to employees selected by it, except that no such grant may be
made by the Strategy Board to employees who are officers of the Corporation or
members of the Board of Directors. The Committee shall make all grants of stock
options and restricted stock units to employees who are officers of the
Corporation. Determinations as to whether the options granted shall be
"incentive stock options" within the meaning of Section 422, or any successor
provision, of the Internal Revenue Code of 1986, as amended (the "Code"), or
non-qualified options, and as to any restrictions which shall be placed on
options and restricted stock units, shall be made by the Committee under such
procedures as it may, from time to time, determine.
4. Except as provided in paragraph 9, the purchase price of the shares of
stock under each option shall be not less than 100% of the fair market value
(but in no event less than the par value) of such stock at the time the option
is granted, such fair market value to be determined based on the mean of the
highest and lowest sales prices as reported for Delphi Stock in The Wall Street
Journal for the date of grant. In accordance with such rules and procedures as
the Committee may establish, the aggregate fair market value (determined as of
the time of option grant) of the stock with respect to which incentive stock
options granted and held by an employee which are exercisable for the first time
by such employee during any calendar year under this Plan and all other plans of
the Corporation (and any subsidiary or any parent corporation within the meaning
of Section 424 of the Code, or any successor provision), shall not exceed
$100,000 (except that such amount may be adjusted by the Committee as
appropriate to reflect any amendment of Section 422 of the Code). The terms of
any incentive stock option granted hereunder shall comply in all respects with
the provisions of Section 422 of the Code, or any successor provision, and any
regulations promulgated thereunder.
5. Options granted under this Plan shall be subject to the following
provisions:
5(a). Except as otherwise determined by the Committee, no option shall
become exercisable prior to the first anniversary date of the date of option
grant (or such later date as may be established by the Committee) and after such
date shall be exercisable only in accordance with the terms and conditions
established at the time of grant. As a condition to the exercise of any option,
an employee may, among other things, be required to enter into such agreements
as are considered by the Committee to be appropriate and in the best interests
of the Corporation.
5(b). The expiration date of the option shall be determined at the time
of grant, provided that each such option shall expire not more than ten years
and two days after the date the option was granted or, in the case of an
"incentive stock option," ten years after the date such option was granted.
II-8
<PAGE>
5(c). (i) If an employee is dismissed for cause or quits employment
without the prior written consent of the Corporation or, except as otherwise
determined by the Committee, the employee's employment terminates for any reason
prior to the first anniversary of the date an option is granted, the option
shall terminate on the date of termination of employment. (ii) If an employee's
employment is terminated by reason of death at any time after the first
anniversary of the date of grant of an option, the option shall, except as
otherwise determined by the Committee, terminate on the third anniversary of the
date of death or, if earlier, the expiration date of such option. (iii) If an
employee's employment terminates at any time on or after the first anniversary
of the date of grant of an option for any reason other than as set forth above
in this paragraph 5(c), the option shall, except as otherwise determined by the
Committee, terminate not later than the fifth anniversary of the date of
termination of employment or, if earlier, the expiration date of the option;
provided that (A) if the employee dies within such period, the option shall
terminate on the third anniversary of the date of death or, if earlier, the
expiration date of the option; (B) the Committee may, at any time prior to any
termination of employment under the circumstances covered by this clause (iii),
determine that the option shall terminate on the date of notice of termination
of employment, or such later date as may be determined by Committee; and (C) the
exercise of any option after termination of employment shall be subject to
satisfaction of the conditions precedent that the employee refrain from engaging
in any activity which, in the opinion of the Committee, is competitive with any
activity of the Corporation or any subsidiary (except that employment at the
request of the Corporation with an entity in which the Corporation has, directly
or indirectly, a substantial ownership interest, or other employment
specifically approved by the Corporation, shall not be considered to be an
activity which is competitive with any activity of the Corporation or any
subsidiary), and from otherwise acting, either prior to or after termination of
employment, in any manner inimical or in any way contrary to the best interests
of the Corporation, and that the employee furnish to the Corporation such
information with respect to the satisfaction of the foregoing condition
precedent as the Committee shall reasonably request.
5(d). In consideration for any option granted under this Plan and as a
condition to the exercise thereof, the employee being granted the option, by
accepting such option, will thereby agree to remain in the employment of the
Corporation for a period of six months after the date of exercise of any such
option, unless such employment is terminated by death or retirement (unless the
Committee has determined at the time of issuance or exercise of the option not
to require such agreement). If, contrary to any such agreement, the employee
terminates employment for any reason (unless the employee retires with the prior
consent of the Corporation or dies) within six months after the date of exercise
of any stock option, the employee shall pay to the Corporation an amount equal
to any gain from such exercise, determined by multiplying the difference between
the mean of the highest and lowest market price as reported in The Wall Street
Journal for the date of the option exercise and the exercise price of the option
(without regard to any subsequent market price decrease or increase) by the
number of option shares exercised. Any such option gain realized by the employee
from exercising an option shall be paid by the employee to the Corporation
within thirty days of the date of termination. By accepting an option grant
under this Plan, the employee consents to a deduction of an amount equal to such
option gain from any amounts the Corporation owes the employee, including, but
not limited to, amounts owed as wages or other compensation, fringe benefits, or
vacation pay.
II-9
5(e). For purposes of this Plan, a qualifying leave of absence shall not
constitute a termination of employment, except that an option shall not be
exercisable during a leave of absence granted an employee for government
service.
5(f). All shares purchased upon exercise of any option shall be paid for
in full at the time of purchase. Such payment shall be made in cash, through
delivery of Delphi Stock, or a combination of cash and stock. Any shares so
delivered shall be valued at their fair market value based on the mean of the
highest and lowest sales prices as reported in The Wall Street Journal for the
date of exercise of the option. If payment of federal, state, and/or local
withholding taxes is required in connection with the exercise of an option, the
optionee will, at the time of exercise, pay such taxes in cash or stock
(including shares obtained from the exercise and delivery of option shares). To
the extent authorized by the Committee, any exercise of an option granted under
this Plan may be made in accordance with any cashless exercise program approved
by the Committee.
5(g). No holder of any option shall have any rights to dividends or other
rights of a stockholder with respect to shares subject to the option prior to
purchase of such shares upon exercise of the option.
5(h). Unless otherwise determined by the Committee, with the exception of
transfer by will or the laws of descent and distribution, or as otherwise
provided in paragraph 7, no option shall be assignable or transferable, and an
option shall be exercisable during the life of an employee only by such
employee.
6. Restricted stock units (sometimes referred to herein as "Units")
granted under this Plan shall be subject to the following provisions:
6(a). Subject to adjustments contemplated under Section 10 of this Plan,
(i) a Unit granted hereunder shall relate to one share of Delphi Stock (a
"Corresponding Share"), and (ii) the value of a Unit at any time shall be the
fair market value of the Corresponding Share, determined in accordance with
procedures established by the Committee.
6(b). Subject to the terms of this Plan, the Committee shall determine
the number of Units to be granted to an employee and the terms and conditions
applicable to the grant (a "Unit Grant") of such Units. Subject to the terms of
this Plan, the Committee may impose different terms and conditions on any
particular Unit Grant made to any particular employee.
6(c). Subject to the satisfaction of the conditions precedent set forth
under paragraph 6(d) below and such additional conditions as may be imposed by
the Committee, each Unit Grant shall vest at the time or times determined by the
Committee, provided that the Committee, in making such determination, shall
establish the vesting increments (including their number, amounts, and timing)
so as to carry out the purposes of this Plan. Within the limitations specified
in the preceding sentence, the Committee may, in its sole discretion, modify
vesting provisions with respect to the unvested portion of any Unit Grant if, in
the judgment of the Committee, circumstances outside the control of the
Corporation have so changed as to make such modifications necessary or advisable
in order to preserve the reward and incentive purposes of this Plan. As a
condition to the vesting of all or any portion of a Unit Grant, the Committee
may, among other things, require an employee to enter into such agreements as
the Committee considers appropriate and in the best interests of the
Corporation. In addition, the Committee may establish performance vesting
criteria with respect to all or any portion of a Unit Grant which relate to and
are contingent upon the satisfaction of specific goals
II-10
established by the Committee at the time of the Unit Grant. Such goals may be
based upon or relate to one or more of the following business criteria: return
on assets, return on net assets, asset turnover, return on equity, return on
capital, market price appreciation of Delphi common stock, economic value added,
total stockholder return, net income, pre-tax income, earnings per share,
operating profit margin, net income margin, sales margin, cash flow, market
share, inventory turnover, sales growth, capacity utilization, increase in
customer base, environmental health and safety, diversity, and/or quality. The
business criteria may be expressed in absolute terms or relative to the
performance of other companies or to an index. With respect to any Unit Grant
which is subject to performance vesting, the Committee shall establish for each
such award performance levels related to the enterprise (as defined below) at
which 100% of the award shall be earned and a range (which need not be the same
for all awards) within which greater and lesser percentages shall be earned. The
term "enterprise" shall mean the Corporation and/or any unit or portion thereof,
and any entities in which the Corporation has, directly or indirectly, a
substantial ownership interest.
6(d). (i) The vesting of each Unit Grant shall be subject to the
satisfaction of the conditions precedent that: (A) the employee continue to
render services as an employee (unless waived by the Committee), (B) the
employee refrain from engaging in any activity which, in the opinion of the
Committee, is competitive with any activity of the Corporation or any subsidiary
(except that employment at the request of the Corporation with an entity in
which the Corporation has, directly or indirectly, a substantial ownership
interest, or other employment specifically approved by the Committee, shall not
be considered to be an activity which is competitive with any activity of the
Corporation or any subsidiary) and from otherwise acting, either prior to or
after termination of employment, in any manner inimical or in any way contrary
to the best interests of the Corporation, and (C) the employee furnish to the
Corporation such information with respect to the satisfaction of the foregoing
conditions precedent as the Committee shall reasonably request. Except as
otherwise provided under (iii) below, the failure by any employee to satisfy
such conditions precedent shall result in the immediate cancellation of the
unvested portion of any Unit Grant previously made to such employee and all
Units still covered by such Unit Grant, and such employee shall not be entitled
to receive any consideration in respect of such cancellation. (ii) If any
employee is dismissed for cause or quits employment without the prior written
consent of the Corporation, the unvested portion of any Unit Grant previously
made to such employee, and all Units still covered thereby shall be canceled as
of the date of such termination of employment, and such employee shall not be
entitled to receive any consideration in respect of such cancellation. (iii)
Upon termination of an employee's employment for any reason other than as
described in (ii) above, the Committee may, but shall not in any case be
required to, waive the condition precedent relating to the continued rendering
of services in respect of all or any specified percentage of the unvested
portion of any Unit Grant, as the Committee in its discretion shall determine.
To the extent such condition precedent is waived, the Committee may, in its
discretion, accelerate the vesting of all or any specified percentage of the
unvested portion of any Unit Grant. (iv) For purposes of this Plan, a qualifying
leave of absence, determined in accordance with procedures established by the
Committee, shall not constitute a termination of employment, except that a Unit
Grant shall not vest during a leave of absence granted an employee for
government service.
II-11
<PAGE>
6(e). With respect to any dividend or other distribution on any
Corresponding Shares, the Committee may, in its discretion, authorize current or
deferred payments (payable in cash or stock or a combination thereof, as
determined by the Committee) or appropriate adjustments to outstanding Unit
Grants to reflect such dividend or distribution.
6(f). (i) Upon vesting of all or any portion of a Unit Grant, the
percentage of the Unit Grant then vesting will be applied to the total number of
Units then covered by such Unit Grant, and the proportionate number of Units so
computed, disregarding fractional Units, will be paid to such Participant in the
form of shares of Delphi Stock, or in cash based on the fair market value of the
Corresponding Shares on the vesting date, or partly in cash and partly in shares
of Delphi Stock as the Committee in its sole discretion shall determine. The
stock and/or related cash payment, will be delivered, in accordance with
procedures to be established by the Committee, and upon satisfaction of the
applicable withholding requirements, as soon as practicable after such vesting
date. (ii) In the discretion of, and in accordance with procedures to be
established by the Committee, Corresponding Shares, or cash of equivalent value,
may be designated for, and delivered to, the Corporation in satisfaction of any
federal, state and/or local withholding taxes applicable to the payment of
Units.
6(g). Unless otherwise determined by the Committee, no holder of a Unit
Grant shall have any rights to dividends (other than as provided in paragraph
6(e) above) or other rights of a stockholder with respect to Units and
Corresponding Shares relating to such Unit Grant prior to the delivery of such
Corresponding Shares pursuant to the vesting of such Unit Grant.
6(h). Unless otherwise determined by the Committee, with the exception of
transfer by will or the laws of descent and distribution or as otherwise
provided in paragraph 7, no Unit Grant shall be assignable or transferable and,
during the lifetime of the grantee thereof, any payment in respect of such Unit
Grant shall be made only to such grantee.
7. An employee holding an option or Unit Grant under this Plan may make a
written designation of beneficiary or beneficiaries on a form prescribed by and
filed with the Secretary of the Committee. Such beneficiary or beneficiaries or,
if no such designation of any beneficiary or beneficiaries has been made, the
employee's legal representative(s) or such other person(s) entitled thereto as
determined by a court of competent jurisdiction, (i) may exercise, in accordance
with and subject to the provisions of paragraph 5, any unterminated and
unexpired option granted to such employee and (ii) receive payment, in
accordance with and subject to the provisions of paragraph 6, pursuant to the
vesting of all or any portion of a Units Grant. A designation of beneficiary may
be replaced by a new designation or may be revoked by the employee at any time.
8. The shares to be delivered upon exercise of an option or vesting of a
Unit Grant shall be made available, at the discretion of the Board of Directors
or a Committee of the Board of Directors as designated by the Board, either from
authorized but previously unissued shares or from shares reacquired by the
Corporation, including shares purchased in the open market. If shares are
purchased in the open market for delivery upon the exercise of an option or
vesting of a Unit Grant, they shall be held in a treasury account specifically
designated for such awards.
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<PAGE>
9. For employees transferring from General Motors on or after January 1,
1999, or if the Corporation acquires an entity which has issued and outstanding
stock options or other rights, the Corporation may substitute an appropriate
number of stock options or Units under this Plan for options or rights of such
entity, including options to acquire stock at less than 100% of the fair market
price of the stock at the time of grant, as determined by the Committee in its
sole discretion.
10. In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, or other change in Corporate structure
affecting Delphi Stock the Committee may, but shall not be required to, make
such adjustments in the aggregate number of shares which may be delivered under
this Plan, the number and option price of shares subject to outstanding options
and the number of shares subject to Units granted under this Plan (provided the
number of shares subject to any award shall always be a whole number), as may be
determined to be appropriate by the Committee.
11. To the extent determined by the Committee, any subsidiary may, without
regard to the limitations under this Plan, have a separate incentive plan or
program. The Committee shall have exclusive jurisdiction and sole discretion to
approve or disapprove any such plan or program and, from time to time, to amend,
modify, or suspend any such plan or program. Individuals eligible for grants
under any such plan or program shall not be considered employees eligible for
grants under this Plan, unless otherwise determined by the Committee. No
provision of any such plan or program shall be included in or considered a part
of this Plan, and any awards made under any such plan or program shall not be
charged against the aggregate number of shares of stock available for grant
under this Plan, unless otherwise determined by the Committee.
12. The expenses of administering this Plan shall be borne by the
Corporation.
13. Full power and authority to construe and interpret this Plan shall be
vested in the Committee. To the extent determined by the Committee,
administration of this Plan, including, but not limited to (a) the selection of
employees for participation in this Plan and (b) the grant amounts and the
vesting schedules for options and RSUs, may be delegated to the Strategy Board;
provided, however, the Committee shall not delegate to the Strategy Board any
powers, determinations or responsibilities with respect to officers of the
Corporation. The instruments evidencing options and RSUs and documentation with
respect to the exercise of options and payment of RSUs, if any, shall be in such
form, consistent with this Plan, as may be determined by the Committee. Any
person who accepts any award hereunder agrees to accept as final, conclusive,
and binding all determinations of the Committee and the Strategy Board. The
Committee shall have the right, in the case of participants not employed in the
United States, to vary from the provisions of this Plan in order to preserve the
incentive features of this Plan.
14. The Committee, in its sole discretion, may, at any time, amend,
modify, suspend, or terminate this Plan provided that no such action without the
approval of the stockholders shall increase the maximum number of shares for
which, or with respect to which, options or restricted stock units may be
granted to employees under this Plan (except as permitted by paragraph 10), or
permit the granting of options under this Plan with an option price of less than
100% of the fair market value of Delphi Stock at the time the options are
granted (except as permitted in
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<PAGE>
paragraphs 9 and 10 of this Plan), or permit exercise of the options unless full
payment is made at the time of exercise, or extend the period during which
options may be exercised, as set forth in Section 5(b), or render any member of
the Committee on Executive Development and Compensation or the Audit Committee,
or any director who is not an employee, eligible to be granted an option or
Unit, or (iii) grant any option or Unit under this Plan after May 31, 2004.
15. Every right of action by, or on behalf of, the Corporation or by any
stockholder against any past, present, or future member of the Board of
Directors, officer, or employee of the Corporation or its subsidiaries arising
out of or in connection with this Plan shall, irrespective of the place where
action may be brought and irrespective of the place of residence of any such
director, officer, or employee, cease and be barred by the expiration of three
years from the date of the act or omission in respect of which such right of
action arises. Any and all right of action by any employee (past, present, or
future) against the Corporation arising out of or in connection with this Plan
shall, irrespective of the place where an action may be brought, cease and be
barred by the expiration of three years from the date of the act or omission in
respect of which such right of action arises. This Plan and all determinations
made and actions taken pursuant hereto shall be governed by the laws of the
State of Delaware, without giving effect to principles of conflict of laws, and
construed accordingly.
16. This Plan shall be effective on January 1, 1999.
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EXHIBIT 5(a)
DRINKER BIDDLE & REATH LLP
1345 Chestnut Street
Philadelphia, PA 19107
Phone (215)988-2700
February 5, 1999
Delphi Automotive Systems Corporation
5725 Delphi Drive
Troy, Michigan 48098
Gentlemen:
We have acted as special counsel to Delphi Automotive Systems
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 under the Securities Act of 1933 (the "Registration Statement")
relating to up 151,760 shares of Common Stock of the Company, par value $.01 per
share (the "Shares"), issuable upon the exercise of options granted under Delphi
Automotive Systems Stock Incentive Plan (the "Plan").
In this connection, we have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Amended and Restated
Certificate of Incorporation and the ByLaws of the Company as amended through
the date hereof, resolutions of the Company's Board of Directors (including
committees thereof), the Plan, and such other documents and corporate records as
we have deemed appropriate in the circumstances.
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
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 issuance of the Shares
by the Company upon the exercise of stock options properly granted under the
Plan has been duly authorized by the necessary corporate action of the Board of
Directors of the Company, and such Shares, upon the exercise of such options and
payment therefor in accordance with the terms of the Plan, will be validly
issued, fully paid and nonassessable by the Company.
The opinions expressed herein are limited to the federal laws of the
United States and the General Corporation Law of the State of Delaware.
We consent to the use of this opinion as an exhibit to the Registration
Statement. This does not constitute a consent under Section 7 of the Securities
Act of 1933 since we have not certified any part of such Registration Statement
and do not otherwise come within the categories of persons whose consent is
required under said Section 7 or the rules and regulations of the Securities and
Exchange Commission.
Very truly yours,
/S/DRINKER BIDDLE & REATH LLP
DRINKER BIDDLE & REATH LLP
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EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
DELPHI AUTOMOTIVE SYSTEMS CORPORATION:
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
14, 1999, appearing in the Delphi Automotive Systems Corporation Registration
Statement on Form S-1 (Registration No. 333-67333). We also consent to the
reference to us under the heading "Item 3. Incorporation of Documents by
Reference" in this Registration Statement.
/s/DELOITTE & TOUCHE LLP
Detroit, Michigan
February 5, 1999
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