As filed with the Securities and Exchange Commission on May 20, 1999
Registration Statement No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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
(Address of Principal Executive Offices)
ASEC Manufacturing Savings 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)
Please send copies of all communications to:
F. Douglas Raymond, III, Esquire
Drinker Biddle & Reath LLP
1000 Westlakes Drive, Suite 300
Berwyn, Pennsylvania 19312-2409
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CALCULATION OF REGISTRATION FEE
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Title of Amount to be Proposed Proposed Amount of
Securities to registered (1)(2) Maximum Maximum Registration
be registered Aggregate Aggregate fee
Offering Offering
price price(2)
Per share
(2)
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Common Stock 50,000 shares $20.41 1,020,312.50 $283.65
($0.01 par value)
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(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. In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, this registration statement also covers an
indeterminate amount of interests to be offered and sold pursuant to
the employee benefit plan described herein.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h). The price is based on the average of the
highest and lowest prices for the Common Stock as reported on the New
York Stock Exchange on May 17, 1999.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(Not required to be filed as part of this Registration Statement)
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below which have been filed by Delphi Automotive
Systems Corporation ("Delphi" or the "Corporation") with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
registration statement:
(a) Delphi's Annual Report on Form 10-K for the year ended
December 31, 1998;
(b) Delphi's Current Report on Form 8-K dated April 12, 1999,
April 15, 1999 and April 28, 1999;
(c) Delphi's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999;
(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 reports and other documents subsequently filed by Delphi
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), after the date hereof and 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 modified or superseded 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.
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Item 6. Indemnification of Directors and Officers.
Delphi'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 Delphi 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 Delphi 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 the 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.
Delphi'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 Delphi's officers and directors will be
covered by insurance policies maintained by Delphi against certain liabilities
for actions taken in their capacities as such, including liabilities under the
1933 Act.
Item 7. Exemptions from Registration Claimed.
Not applicable.
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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
5 Opinion and consent of Drinker Biddle & Reath LLP, in respect to
the legality of the securities to be registered hereunder. 10
23.1 Consent of Independent Auditors - Deloitte & Touche LLP. 11
23.2 Consent of Drinker Biddle & Reath LLP (Included in Exhibit 5
above). n/a
24 Power of Attorney (See Signature Page) n/a
Delphi has submitted or will submit the ASEC Manufacturing
Savings Plan (the "Plan") and any amendments thereto to the Internal
Revenue Service (the "IRS") in a timely manner and has made or will
make all changes required by the IRS in order to qualify the Plan.
Item 9. Undertakings
1. Undertakings required by Regulation S-K Item 512(a)
The undersigned registrant hereby undertakes as follows:
(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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration
statement (or the most recent post-effective amendment
thereof) which, individually or in aggregate, represen
a fundamental change in the information set forth in
this registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
this registration statement or any material change to
such information in this registration statement;
Notwithstanding the foregoing, any increase or
decrease in the volume of the securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the change in volume and
price represents no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
registration statement; provided, however, that
paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this registration
statement.
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(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
2. Undertakings Required by Regulation S-K Item 512(b).
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in this 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.
3. Undertakings Required by Regulation S-K Item 512(h).
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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 Act and will be governed
by the final adjudication of such issue.
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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, as of May 3, 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
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, thateach 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.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed as of May 3, 1999 by the following
persons in the capacities indicated.
Signature Title
--------- -----
/s/ J.T. Battenberg III Chairman of the Board, Chief Executive
- --------------------------------- Officer and President
(J.T. Battenberg III) (Principal Executive Officer)
/s/ Alan S. Dawes Chief Financial Officer
- --------------------------------- and Vice President
(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
- --------------------------------- (Lead Independent Director)
(Thomas H. Wyman)
/s/ Virgis W. Colbert Director
- ---------------------------------
(Virgis W. Colbert)
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Signatures (concluded)
/s/ Shoichiro Irimajiri Director
- ---------------------------------
(Shoichiro Irimajiri)
/s/ J. Michael Losh Director
- ---------------------------------
(J. Michael Losh)
/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/ Harry J. Pearce Director
- ---------------------------------
(Harry J. Pearce)
/s/ Roger S. Penske Director
- ---------------------------------
(Roger S. Penske)
/s/ John F. Smith Jr. Director
- ---------------------------------
(John F. Smith Jr.)
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the
Administrator of the ASEC Manufacturing Savings Plan (the "Plan") has
duly caused this registration statement to be signed on behalf of the
Plan by the undersigned, thereunto duly authorized, in the City of
Troy, State of Michigan as of May 3, 1999.
ASEC MANUFACTURING SAVINGS PLAN
By:/s/ Diane L. Kaye
-----------------------------
Name: Diane L. Kaye
Title: Secretary
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EXHIBIT 5
LAW OFFICES
DRINKER BIDDLE & REATH LLP
1000 Westlakes Drive, Suite 300
Berwyn, Pennsylvania 19312-2409
Telephone: (610) 993-2200
Fax: (610) 993-8585
May 17, 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 50,000 shares of
Common Stock of the Company, par value $.01 per share (the "Shares"), under
the ASEC Manufacturing Savings Plan (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 issuance and
sale of the Shares as we have deemed appropriate. The opinions expressed
herein are based exclusively on the General Corporation Law of the State of
Delaware.
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 Shares issued by
the Company under the Plan and paid for in accordance with the terms of the
Plan will be validly issued, fully paid and nonassessable by the Company.
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
May 19, 1999
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