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)
Delphi Savings-Stock Purchase Program for Salaried Employees
in the United States
Delphi Personal Savings Plan for Hourly Rate Employees in the United States
(Full title of the plans)
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)
- -------------------------------------------------------------------------------
Common Stock 7,500,000 $20.41 $153,046,875.00 $42,547.03
($0.01 par value) shares(3)
- -------------------------------------------------------------------------------
(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, as amended, this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plans 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.
(3) Amount includes 6,000,000 shares issuable under the registrant's
Savings-Stock Purchase Program for Salaried Employees in the United States
and 1,500,000 shares issuable under the registrant's Personal Savings Plan
for Hourly Rate Employees in the United States.
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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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<PAGE>
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
The Corporation has submitted or will submit the Delphi Saving-Stock
Purchase Program for Salaried Employees in the United States and the Delphi
Personal Savings Plan for Hourly Employees in the United States (collectively,
the "Plans") 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 such Plans.
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, represent 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
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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.
(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 OR ATTORNEY
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.
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)
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Signatures (concluded)
/s/ Thomas H. Wyman Director
- --------------------------------- (Lead Independent Director)
(Thomas H. Wyman)
/s/ Virgis W. Colbert Director
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(Virgis W. Colbert)
/s/ Shoichiro Irimajiri Director
- ---------------------------------
(Shoichiro Irimajiri)
/s/ J. Michael Losh Director
- ---------------------------------
(J. Michael Losh)
/s/ Susan A. McLaughlin Director
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(Susan A. McLaughlin)
/s/ Oscar De Paula Bernardes Neto Director
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(Oscar De Paula Bernardes Neto)
/s/ John D. Opie Director
- --------------------------------
(John D. Opie)
/s/ Harry J. Pearce Director
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(Harry J. Pearce)
/s/ Roger S. Penske Director
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(Roger S. Penske)
/s/ John F. Smith Jr. Director
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(John F. Smith Jr.)
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<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the
administrator of each Plan has duly caused the Registration Statement to be
signed on behalf of each such Plan by the undersigned, thereunto duly
authorized, in the City of Troy, State of Michigan as of May 3, 1999.
DELPHI SAVINGS-STOCK PURCHASE PROGRAM FOR
SALARIED EMPLOYEES IN THE UNITED STATES
By:/s/ Diane L. Kaye
------------------------------
Name: Diane L. Kaye
Title Secretary
DELPHI PERSONAL SAVINGS PLAN FOR HOURLY
RATE EMPLOYEES IN THE UNITED STATES
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 6,000,000 shares of Common Stock of the Company,
par value $.01 per share the ("Common Stock") issuable under the Company's
Savings-Stock Purchase Program for Salaried Employees in the United States (the
"Salaried Plan") and 1,500,000 shares of Common Stock (collectively the
"Shares") issuable under the Company's Personal Savings Plan for Hourly Rate
Employees in the United States (the "Hourly Plan") (the Salaried Plan and the
Hourly Plan, collectively, the "Plans").
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 under which they are issued and paid for in accordance
with the terms of such 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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