1
EXHIBIT 1.1
100,000,000 Shares
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
(a Delaware corporation)
Common Stock
($0.01 Par Value Per Share)
UNDERWRITING AGREEMENT
_________ __, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxxxx & Co. Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Sachs International
Xxxxxxx Xxxxx International
Xxxxxxxxx, Lufkin & Xxxxxxxx International
J. Xxxxx Xxxxxxxx & Co. Limited
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
Delphi Automotive Systems Corporation, a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the several Underwriters (as defined
below) 100,000,000 shares of its Common Stock, par value $0.01 per share (the
"FIRM SHARES").
2
It is understood that, subject to the conditions hereinafter stated,
85,000,000 Firm Shares (the "U.S. FIRM SHARES") will be sold to the several U.S.
Underwriters named in Schedule I hereto (the "U.S. UNDERWRITERS") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are defined in the
Agreement Between U.S. and International Underwriters of even date herewith),
and 15,000,000 Firm Shares (the "INTERNATIONAL SHARES") will be sold to the
several International Underwriters named in Schedule II hereto (the
"INTERNATIONAL UNDERWRITERS") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx,
Sachs & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation and Xxxxxxxx & Co. Inc. shall act as
representatives (the "U.S. REPRESENTATIVES") of the several U.S. Underwriters,
and Xxxxxx Xxxxxxx & Co. International Limited, Xxxxxxx Sachs International,
Xxxxxxx Xxxxx International, Xxxxxxxxx, Lufkin & Xxxxxxxx International and J.
Xxxxx Xxxxxxxx & Co. Limited shall act as representatives (the "INTERNATIONAL
REPRESENTATIVES") of the several International Underwriters. The U.S.
Representatives and the International Representatives are hereinafter
collectively referred to as the Representatives. The U.S. Underwriters and the
International Underwriters are hereinafter collectively referred to as the
Underwriters.
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional 15,000,000 shares of its Common Stock,
par value $0.01 per share (the "ADDITIONAL SHARES") if and to the extent that
the U.S. Representatives shall have determined to exercise, on behalf of the
U.S. Underwriters, the right to purchase such shares of common stock granted to
the U.S. Underwriters in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "SHARES." The shares of
Common Stock, par value $0.01 per share, of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "COMMON STOCK."
Prior to the purchase and public offering of the Firm Shares by the
several Underwriters, the Company and the Representatives, acting on behalf of
the several Underwriters, shall enter into an agreement substantially in the
form of Exhibit A hereto (the "PRICING AGREEMENT"). The Pricing Agreement may
take the form of an exchange of any standard form of written telecommunication
between the Company and the Representatives and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the Shares will
be governed by this Agreement, as supplemented by the Pricing Agreement. From
and after the date of the execution and delivery of the Pricing Agreement, this
2
3
Agreement shall be deemed to incorporate the Pricing Agreement. The date of the
Pricing Agreement is referred to as the "REPRESENTATION DATE."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (File No. 333-67333) relating
to the Shares. The registration statement contains two prospectuses to be used
in connection with the offering and sale of the Shares: the U.S. prospectus, to
be used in connection with the offering and sale of Shares in the United States
and Canada to United States and Canadian Persons, and the international
prospectus, to be used in connection with the offering and sale of Shares
outside the United States and Canada to persons other than United States and
Canadian Persons. The international prospectus is identical to the U.S.
prospectus except for the outside front cover page. The registration statement
as amended at the time it becomes effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A of these rules and regulations (the "1933 ACT
REGULATIONS") of the Commission under the Securities Act of 1933, as amended
(the "1933 ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT";
the U.S. prospectus and the international prospectus in the respective forms
first used to confirm sales of Shares are hereinafter collectively referred to
as the "PROSPECTUS." If the Company has filed an abbreviated registration
statement to register additional shares of Common Stock pursuant to Rule 462(b)
under the 1933 Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462 Registration Statement.
As part of the offering contemplated by this Agreement, Xxxxxx Xxxxxxx & Co.
Incorporated has agreed to reserve out of the Shares set forth opposite its name
on Schedule I to this Agreement up to _____________ Shares, for sale to certain
of the Company's employees, officers, and directors and other parties associated
with the Company as designated by the Company (collectively, "MS PARTICIPANTS"),
as set forth in the Prospectus under the heading "Underwriters" (the "MS
DIRECTED SHARE PROGRAM"). The Shares to be sold by Xxxxxx Xxxxxxx & Co.
Incorporated pursuant to the MS Directed Share Program (the "MS DIRECTED
SHARES") will be sold by Xxxxxx Xxxxxxx & Co. Incorporated pursuant to this
Agreement at the public offering price in the jurisdictions designated by the
Company to those MS Participants who have signed a 180 day lock-up agreement in
a form acceptable to the Company . Any MS Directed Shares not orally confirmed
for purchase by any MS Participants by the end of the first business day after
the date on which this Agreement is executed will be offered to the public by
Xxxxxx Xxxxxxx & Co. Incorporated as set forth in the Prospectus. Xxxxxx Xxxxxxx
& Co. Incorporated has also agreed to reserve out of the Shares set forth
opposite its name on Schedule I to this Agreement up to ___________ Shares, for
sale by Xxxxxxx Xxxxx Barney Inc. to certain of the Company's employees,
officers and directors, pursuant to the terms of a letter
3
4
agreement dated the date hereof between the Company and Xxxxxxx Xxxxx Xxxxxx
Inc.
I.
On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Company, at the price per share set
forth in the Pricing Agreement, the number of Firm Shares set forth in Schedule
I and Schedule II, as the case may be, opposite the name of such Underwriter
(except as otherwise provided in the Pricing Agreement), plus any additional
number of Firm Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Article IX hereof, subject to adjustments as the
Underwriters in their discretion shall make to eliminate any sales or purchases
of fractional securities.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby grants a one-time option to the U.S. Underwriters, severally and not
jointly, to purchase the Additional Shares at the price per share set forth in
the Pricing Agreement. The option hereby granted will expire 30 days after the
Representation Date and may be exercised in whole or in part only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Firm Shares upon notice by the U.S.
Representatives to the Company setting forth the number of Additional Shares as
to which the several U.S. Underwriters are exercising the option and the time,
date and place of payment and delivery for such Additional Shares. Such time and
date of delivery (the "DATE OF DELIVERY") shall be determined by the U.S.
Representatives but shall not be later than ten full business days after the
exercise of said option, nor in any event prior to Closing Time, as hereinafter
defined, unless otherwise agreed upon by the U.S. Representatives and the
Company. If the option is exercised as to all or any portion of the Additional
Shares, the Company will issue and sell and each of the U.S. Underwriters,
acting severally and not jointly, will purchase from the Company that proportion
of the Additional Shares (subject to such adjustments to eliminate fractional
shares as the U.S. Representatives may determine), as may be adjusted on a pro
rata basis to reflect the aggregate number of Additional Shares being purchased,
which the number of U.S. Firm Shares set forth in Schedule I opposite the name
of such U.S. Underwriter bears to the total number of U.S. Firm Shares.
The purchase price per share to be paid by the several Underwriters for
the Firm Shares shall be an amount equal to the initial public offering price,
less an
4
5
amount per share to be determined by agreement between the Underwriters and the
Company. The initial public offering price and the purchase price, when so
determined, shall be set forth in the Pricing Agreement.
II.
The Company understands that the Underwriters propose to make a public
offering of the Shares as soon as they deem advisable after the Registration
Statement becomes effective and the Pricing Agreement has been executed and
delivered.
III.
Payment for the Firm Shares shall be made to the Company in Federal or
other funds immediately available in New York City against delivery of such Firm
Shares for the respective accounts of the several Underwriters at 10:00 a.m.,
New York City time, on ____________, 1999, or at such other time on the same or
such other date, not later than _________, 1999, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "CLOSING TIME."
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several U.S.
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Article I or at such other time on the same or on such other
date, in any event not later than _______, 1999, as shall be designated in
writing by the U.S. Representatives. The time and date of such payment are
hereinafter referred to as the "DATE OF DELIVERY."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Time or the Date of Delivery, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you as
you direct on the Closing Time or the Date of Delivery, as the case may be, for
the respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly
paid, against payment of the purchase price therefor.
5
6
IV.
The obligations of the Company and the several obligations of the
Underwriters hereunder are subject to the condition that the Registration
Statement shall have become effective not later than the date hereof.
The several obligations of the Underwriters hereunder are subject to
the following further conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission, and there shall have been no
material adverse change or development involving a prospective material adverse
change in the condition of the Company and its subsidiaries, taken as a whole,
from that set forth in the Registration Statement; and you shall have received,
at the Closing Time, a certificate of an executive officer of the Company
(acting on behalf of the Company and without personal liability), dated the
Closing Time, to the foregoing effect. Such certificate will also provide that
the representations and warranties of the Company contained herein are true and
correct as of the Closing Time and that the Company has complied in all material
respects with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or before the Closing Time. The
officer may rely upon the best of his knowledge as to proceedings threatened.
(b) You shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxxxxx & Xxxxx, counsel for the Company, to the effect that:
(i) the shares of Common Stock outstanding prior to the issuance
of the Shares have been duly authorized and are validly issued, fully
paid and non-assessable;
(ii) the authorized capital stock of the Company conforms as to
legal matters in all material respects to the description thereof
contained under the heading "Description of Capital Stock" in the
Prospectus;
(iii) the Shares have been duly authorized and, when appropriate
certificates representing those Shares are duly countersigned by the
Company's transfer agent, issued and delivered against payment therefor
in accordance with the terms of this Agreement, will be validly issued,
fully paid and non-assessable, and the issuance of such Shares will not
be subject to any preemptive or similar rights under the Delaware
General Corporation Law, the Company's Restated Certificate of
Incorporation or By-laws or any contractual provision of which we have
knowledge;
6
7
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the execution, delivery and performance of the Company's
obligations under this Agreement will not violate any provision of
applicable law (except that such counsel need express no opinion in
this paragraph as to compliance with any disclosure requirement or any
prohibition against fraud or misrepresentation or as to whether
performance of any indemnification or contribution provisions would be
permitted) or the Certificate of Incorporation or By-laws of the
Company or breach any agreement filed as Exhibit 10.1 through 10.16 of
the Registration Statement (provided that such counsel need express no
opinion as to compliance with any financial test or cross default
provision in any such agreement) or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any of its Significant Subsidiaries, (as defined below)
known to such counsel;
(vi) in connection with the offer and sale of the Shares by the
U.S. Underwriters as contemplated by the Registration Statement, the
Company is not required to obtain any consent, approval or
authorization of any governmental body or agency for the performance of
its obligations under this Agreement other than the registration of the
Shares under the 1933 Act and compliance with the insurance, securities
and Blue Sky Laws of various jurisdictions (as to which we express no
opinion);
(vii) the statements (A) in the Prospectus under the captions
"Management -- Committees of the Board of Directors," "-- Change in
Control Agreements," "-- Incentive Plans, (except for the statements
under the caption "-- Founders Grants" and "-- Substitute Awards")
"Arrangements Between Delphi and General Motors" (except for the
statements under the captions "-- Employee Matters" and "--
International Agreements" thereunder), "Description of Capital Stock"
and "Shares Eligible for Future Sale" and (B) in the Registration
Statement in Items 14 and 15, in each case insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein; and
(viii) to our knowledge, there is no legal or governmental
proceeding or investigation pending or threatened against the Company
or any of its Significant Subsidiaries or to which any of the
properties of the
7
8
Company or any of its Significant Subsidiaries is subject that has
caused us to conclude that such proceeding or investigation is required
by Item 103 of Regulation S-K to be described in the Registration
Statement or the Prospectus and is not so described; we have no
knowledge of any contract to which the Company or any of its
Significant Subsidiaries is subject that has caused us to conclude that
such contract is required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required.
Such counsel shall also provide its advice that (relying as to factual
matters to the extent deemed appropriate by such counsel upon representations
and statements of officers and other representatives of the Company and General
Motors Corporation) no facts came to its attention that caused such counsel to
conclude that (i) the Registration Statement, on its effective date, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (ii) the Prospectus, on the date it bears or as of the Closing Time,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading or (iii)
as of the effective date of the Registration Statement, either the Registration
Statement or the Prospectus appears on its face not to be responsive in all
material respects to the requirements of Form S-1, except for, in each case,
financial statements and schedules and other financial and statistical data
included therein or omitted therefrom, as to which such counsel need not express
any opinion.
(c) You shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxxx X. Xxxxxxxx, Senior Attorney, Legal Staff, of General
Motors Corporation, a Delaware corporation ("GENERAL MOTORS"), to the effect
that:
(i) the Separation Agreement and the Ancillary Agreements (as such
terms are defined in the Registration Statement) have each been duly
authorized, executed and delivered by General Motors and each such
agreement constitutes a valid and binding agreement of General Motors;
(ii) the execution, delivery and performance of the Separation
Agreement and the Ancillary Agreements will not violate any provision
of applicable law or the Certificate of Incorporation or By-laws of
General Motors or breach any material agreement or other instrument
known to such counsel and binding upon General Motors or any of its
Significant Subsidiaries, or any material judgment, order or decree
known to such counsel of any governmental body, agency or court having
jurisdiction
8
9
over General Motors or any of its Significant Subsidiaries, provided
that no opinion need be given with respect to the need for third party
consents as described in the Prospectus in the last paragraph under the
caption "Business of Delphi -- Customers -- Other VMs"; and
(iii) no consent, approval or authorization of any governmental
body or agency is required for the performance by General Motors and
its subsidiaries of the Separation Agreement and the Ancillary
Agreements, except such as shall have been obtained or waived or that,
if not obtained or waived, would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole, or the ability of
the Company or the Underwriters to consummate the offering contemplated
hereby.
(d) You shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxx X. Xxxxxxxx, General Counsel of the Company, to the
effect that:
(i) the Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction listed on Schedule A to such opinion, a draft of which has
been previously provided to you;
(ii) each Significant Subsidiary of the Company has been duly
incorporated or organized, as the case may be, is validly existing as a
corporation or a limited liability company, as the case may be, in good
standing under the laws of the jurisdiction of its incorporation, has
the corporate or limited liability company power and authority to own
its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in
each jurisdiction listed on Schedule B to such opinion, a draft of
which has been previously provided to you;
9
10
(iii) all of the issued and outstanding shares of capital stock or limited
liability company interests, as the case may be, of each Significant Subsidiary
of the Company have been duly and validly authorized and issued, are fully paid
and non-assessable in the case of a corporation and are owned of record,
directly or indirectly, by the Company, free and clear of all liens,
encumbrances, equities or claims;
(iv) the Separation Agreement and the Ancillary Agreements have
each been duly authorized, executed and delivered by the Company and
each such agreement constitutes a valid and binding agreement of the
Company;
(v) the execution, delivery and performance of the Separation
Agreement and the Ancillary Agreements will not violate any provision
of applicable law or the Certificate of Incorporation or By-laws of the
Company or breach any agreement or other instrument known to such
counsel and binding upon the Company or any of its Significant
Subsidiaries, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any of
its Significant Subsidiaries, provided that no opinion need be given
with respect to the need for third party consents as described in the
Prospectus in the last paragraph under the caption "Business of Delphi
-- Customers -- Other VMs";
(vi) no consent, approval or authorization of any governmental
body or agency is required for the performance by the Company and its
subsidiaries of the Separation Agreement and the Ancillary Agreements,
except such as shall have been obtained or waived or that, if not
obtained or waived, would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, or the ability of the
Company or the Underwriters to consummate the offering contemplated
hereby; and
(vii) the statements in the Prospectus under the captions
"Business of Delphi -- Intellectual Property," " -- Employees; Union
Representation," "-- Environmental Matters," "-- Legal Proceedings,"
"Arrangements Between Delphi and General Motors -- Employee Matters"
and "-International Agreements," in each case insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called
for with respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein.
10
11
(e) You shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, covering
the matters referred to in clauses (b)(iii), (b)(iv), (b)(vii) (but only as to
the statements in the Prospectus under "Description of Capital Stock" and
"Underwriters") and the last paragraph of clause (b).
(f) You shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxxxxx & Xxxxx to the effect that the discussion set forth
under the caption "Material United States Federal Tax Consequences to Non-United
States Holders" in the Prospectus accurately reflects such counsel's views on
the matters discussed therein and is based on reasonable interpretations of
existing law.
With respect to the last paragraph of clause (b) above, each counsel
referred to in clauses (b) and (e) may state that their opinion and belief are
based upon their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or
verification, except as specified.
The opinions of Xxxxxxxx & Xxxxx, Xxxxxx X. Xxxxxxxx and Xxxxx Xxxxxxxx
described in clauses (b), (c), (d) and (f) above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(g) The Representatives shall have received on the date of this
Agreement a letter dated such date and also at the Closing Time a letter dated
as of the Closing Time, in each case in form and substance satisfactory to the
Representatives, from Deloitte & Touche LLP, independent auditors, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus; provided that the letter delivered at the Closing Time shall use a
"cut-off date" not earlier than the date hereof.
(h) At the Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the sale of the Shares as contemplated
herein and related proceedings, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the sale of the Shares as herein or therein contemplated shall be reasonably
satisfactory in form and substance to you and your counsel.
11
12
(i) The "lock-up" agreements, substantially in the form of Exhibit B
hereto, between you and General Motors and certain employees of the Company
relating to sales and certain other dispositions of shares of Common Stock or
certain other securities, delivered to you on or before the date hereof, shall
be in full force and effect at the Closing Time.
(j) The New York Stock Exchange shall have approved the Common Stock
for listing, subject only to official notice of issuance.
(k) The Representatives shall have received on the date of this
Agreement a certificate relating to awarded business, in form and substance
satisfactory to the Representatives, from an executive officer of the Company
and such certificate shall remain true and correct and of full force and effect
at the Closing Time.
(l) The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Date of Delivery of such documents as they may reasonably
request, which in any case shall be substantially similar to those documents
delivered pursuant to clause (h) above at the Closing Time.
If any condition specified in this Article shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or prior to
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Article IX.
V.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish the Representatives, without charge, 6 signed copies of
the Registration Statement as filed with the Commission (including exhibits
thereto) and for delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and to furnish to you in New
York City, without charge, prior to 5:00 p.m. New York City time on the business
day succeeding the date of this Agreement as many copies of the Prospectus and,
during the period mentioned in paragraph (c) below, any supplements and
amendments thereto or to the Registration Statement as Xxxxxx Xxxxxxx & Co.
Incorporated may reasonably request.
12
13
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish you a copy of each such proposed amendment or supplement
and not to file any such proposed amendment or supplement to which you
reasonably object, unless counsel to the Company advises that such filing is
required by law, and to file with the Commission within the applicable period
specified in Rule 424(b) under the 1933 Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the Shares as in the opinion of your counsel the Prospectus is required by
law to be delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish to
the Company) to which Shares may have been sold by you and to any other dealers
upon request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will comply
with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the U.S. Representatives
shall reasonably request and to pay all expenses (including reasonable fees and
disbursements of counsel) in connection therewith.
(e) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the twelve month period
ending ___________, 2000, which shall satisfy the provisions of Section 11(a) of
the 1933 Act and the 1933 Act Regulations.
(f) Without the prior written consent of Xxxxxx Xxxxxxx & Co.
Incorporated on behalf of the Underwriters, during the period ending 180 days
after the date of the Prospectus, not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of
13
14
Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Shares to be sold hereunder, (B) the
issuance by the Company of shares of Common Stock upon the exercise of an option
or warrant or the conversion of a security outstanding on the date hereof of
which the Underwriters have been advised in writing, (C) the granting of stock
options and/or restricted stock units pursuant to existing Company employee
benefit plans, provided that such options do not become exercisable and such
units do not vest during such 180 day period or (D) the substitution of awards
based on the common stock of General Motors into replacement awards under the
Company's incentive plans and other transactions under the Company's incentive
plans.
(g) In connection with the MS Directed Share Program, the Company will use
its reasonable best efforts to ensure that the MS Directed Shares of MS
Participants will be restricted to the extent required by the National
Association of Securities Dealers, Inc. or the rules of such association from
sale, transfer, assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement. Xxxxxx
Xxxxxxx & Co. Incorporated will notify the Company as to which MS Participants
will need to be so restricted. At the request of Xxxxxx Xxxxxxx & Co.
Incorporated, the Company will direct the transfer agent to place stop transfer
restrictions upon such securities for such period of time. The Company will pay
all reasonable and documented fees and disbursements of counsel incurred by the
Underwriters in connection with the MS Directed Share Program and stamp duties,
similar taxes or duties or other taxes, if any, incurred by the Underwriters in
connection with the MS Directed Share Program.
Furthermore, the Company covenants with Xxxxxx Xxxxxxx & Co.
Incorporated that the Company will comply in all material respects with all
applicable securities and other applicable laws, rules and regulations in each
foreign jurisdiction in which the MS Directed Shares are offered in connection
with the MS Directed Share Program.
VI.
The Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or to its knowledge threatened
by the Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be
14
15
stated therein or necessary to make the statements therein not misleading, (ii)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the 1933
Act and the applicable rules and regulations of the Commission thereunder and
(iii) the Prospectus, on the date it bears or as of the Closing Time, does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(d) Each Significant Subsidiary of the Company has been duly incorporated
or organized, as the case may be, is validly existing as a corporation or a
limited liability company, as the case may be, in good standing under the laws
of the jurisdiction of its incorporation, has the corporate power and authority
to own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole; all of the issued shares
of capital stock or limited liability company interests, as the case may be, of
each Significant Subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned by the Company and
its subsidiaries as set forth in Exhibit 21.1 to the Registration Statement,
free and clear of all liens, encumbrances, equities or claims. Delphi Automotive
Systems LLC, Delco Electronics Corporation and Delphi Automotive Systems
(Holding), Inc. (collectively, the "Significant Subsidiaries") are the only
subsidiaries of the Company that are "significant subsidiaries" as such term is
defined in Rule 1-02 (w) of Regulation S-X.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
15
16
(f) The authorized capital stock of the Company conforms as to legal
matters in all material respects to the description thereof contained under the
heading "Description of Capital Stock" in the Prospectus.
(g) The shares of Common Stock outstanding prior to the issuance of the
Shares have been duly authorized and are validly issued, fully paid and
non-assessable.
(h) The Shares have been duly authorized and, when issued and delivered
in accordance with the terms of this Agreement, will be validly issued, fully
paid and non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights.
(i) The execution, delivery and performance of this Agreement will not
violate (i) any provision of applicable law or the Certificate of Incorporation
or By-laws of the Company or (ii) any agreement or other instrument binding upon
the Company or any of its Significant Subsidiaries, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Company or any of its Significant Subsidiaries, except for any such agreements,
instruments, judgments, orders or decrees that would not, singularly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(j) No consent, approval or authorization of any governmental body or
agency is required for the performance of this Agreement other than the
registration of the Shares under the 1933 Act and compliance with the insurance,
securities and Blue Sky Laws of various jurisdictions.
(k) The Separation Agreement and the Ancillary Agreements have each
been duly authorized, executed and delivered by the Company and each such
agreement constitutes a valid and binding agreement of the Company.
(l) The execution, delivery and performance of the Separation Agreement
and the Ancillary Agreements will not violate any provision of applicable law or
the Certificate of Incorporation or By-laws of the Company or any agreement or
other instrument binding upon the Company or any of its Significant
Subsidiaries, or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any of its Significant
Subsidiaries, except for any such agreements, instruments, judgments, orders or
decrees that would not, singularly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
16
17
(m) No consent, approval or authorization of any governmental body or
agency is required for the performance by the Company and its subsidiaries of
the Separation Agreement and the Ancillary Agreements, except such as shall have
been obtained or waived or that, if not obtained or waived, would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole,
or the ability of the Company or the Underwriters to consummate the offering
contemplated hereby.
(n) In connection with the MS Directed Share Program, (i) the Company has
not offered, or caused the Underwriters to offer, Shares to any person with the
specific intent to unlawfully influence (A) a customer or supplier of the
Company to alter the customer's or supplier's level or type of business with the
Company or (B) a trade journalist or publication to write or publish favorable
information about the Company or its products; (ii) the Registration Statement,
the Prospectus and any preliminary prospectus comply, and any further amendments
or supplements thereto will comply,in all material respects with any applicable
laws or regulations of foreign jurisdictions in which the Prospectus or any
preliminary prospectus, as amended or supplemented, if applicable, are
distributed in accordance with this agreement; and (iii) no authorization,
approval, consent, license, order, registration or qualification of or with any
government, governmental instrumentality or court, other than such as have been
obtained, is necessary under the securities laws and regulations of foreign
jurisdictions in which the MS Directed Shares are to be offered outside the
United States in accordance with this agreement.
VII.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the 1933 Act or Section 20 of the Securities Exchange Act of 1934,
as amended (the "1934 ACT"), from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary Prospectus, or caused by
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such losses, claims, damages or liabilities promptly after receipt
of adequate
17
18
documentation relating thereto; provided that the foregoing indemnity agreement
with respect to any preliminary prospectus or Prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of the Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless such failure is the result of noncompliance by
the Company with Article V(a) hereof.
The Company agrees to indemnify and hold harmless Xxxxxx Xxxxxxx & Co.
Incorporated and each person, if any, who controls Xxxxxx Xxxxxxx & Co.
Incorporated within the meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act ("XXXXXX XXXXXXX ENTITIES"), from and against any and all
losses, claims, damages and liabilities (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in the prospectus wrapper
material prepared by or with the consent of the Company for distribution in
foreign jurisdictions in connection with the MS Directed Share Program attached
to the Prospectus or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statement therein, when considered in conjunction with
the Prospectus or any applicable preliminary prospectus, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein; (ii) caused by the
failure of any Participant to pay for and accept delivery of the Shares which,
immediately following the effectiveness of the Registration Statement, were
subject to a properly confirmed agreement to purchase; or (iii) related to,
arising out of, or in connection with the MS Directed Share Program, provided
that the Company shall not be responsible under this clause (iii) for any
losses, claims, damages or liabilities (or expenses relating thereto) that
resulted primarily from the bad faith, willful misconduct or negligence of any
of the Xxxxxx Xxxxxxx Entities. The Company also agrees to reimburse each of the
Xxxxxx Xxxxxxx Entities, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such losses,
claims, damages or liabilities promptly after receipt of adequate documentation
relating thereto. Notwithstanding the foregoing, the indemnity agreement
contained in this paragraph with respect to any prospectus wrapper material
shall not inure to the benefit of any of the Xxxxxx Xxxxxxx Entities from whom
the person asserting any
18
19
such losses, claims, damages or liabilities purchased Shares, if a copy of such
prospectus wrapper material (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Xxxxxx Xxxxxxx Entity to such person, if required
by law so to have been delivered, at or prior to the written confirmation of the
sale of the Shares to such person, and if the prospectus wrapper material (as so
amended or supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities, unless such failure is the result of failure by
the Company to deliver sufficient copies of the prospectus wrapper material (as
so amended or supplemented) in a timely manner to the Xxxxxx Xxxxxxx Entities.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, each of its officers who signs the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act,
to the same extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any preliminary prospectus.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to any of the three preceding paragraphs, such person (hereinafter
called the indemnified party) shall promptly notify the person against whom such
indemnity may be sought (hereinafter called the indemnifying party) in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
shall have agreed in writing to pay such fees and expenses, (ii) the
indemnifying party shall have failed to assume the defense of such proceeding
and employ counsel reasonably satisfactory to the indemnified person in such
proceeding or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties, and that all such
19
20
fees and expenses shall be reimbursed as they are incurred. In the case of any
such separate firm for the Underwriters and such control persons of
Underwriters, such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co.
Incorporated. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is entitled to indemnification hereunder, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
Notwithstanding anything contained herein to the contrary, if indemnity may be
sought pursuant to the second paragraph of this Article VII in respect of such
action or proceeding and the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them, then in addition to
such separate firm for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate firm
(in addition to any local counsel) for Xxxxxx Xxxxxxx & Co. Incorporated for the
defense of any losses, claims, damages and liabilities arising out of the MS
Directed Share Program, and all persons, if any, who control Xxxxxx Xxxxxxx &
Co. Incorporated within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act.
If the indemnification provided for in the first through third
paragraphs of this Article VII is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Shares shall be deemed
to
20
21
be in the same respective proportions as the net proceeds from the offering of
the Shares (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate public offering price of the Shares. The relative fault of the Company
on the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Article VII are several in proportion
to the respective number of Shares they have purchased hereunder, and not joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Article VII are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Article VII
and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Shares.
21
22
VIII.
This Agreement shall be subject to termination in the absolute
discretion of Xxxxxx Xxxxxxx & Co. Incorporated, by notice given to the Company,
if (a) after the execution and delivery of this Agreement and prior to the
Closing Time (i) trading in securities generally on the New York Stock Exchange
or the American Stock Exchange shall have been suspended or materially limited,
(ii) trading of any securities of the Company or of General Motors shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (iv) there shall
have occurred any material outbreak or escalation of hostilities or other
calamity and (b) in the case of any of the events specified in clauses (i)
through (iv), such event, singly or together with any other such event, makes
it, in your reasonable judgement, impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus.
IX.
This Agreement shall become effective when notification of the
effectiveness of the Registration Statement has been released by the Commission
and the Representatives and the Company shall have agreed upon the public
offering price. If the public offering price and the purchase price of the
Shares shall not have been agreed upon, and the Pricing Agreement shall not have
been executed and delivered by all parties thereto, prior to 5:00 p.m., New York
Time, on the seventh full business day after the Registration Statement shall
have become effective, this Agreement shall thereupon terminate without
liability on the part of the Underwriters or the Company, except as set forth
herein.
If as of the Closing Time or the Date of Delivery, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Shares
which it or they have agreed to purchase hereunder on such date, and the
aggregate number of the Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions which the number of
Firm Shares set forth opposite their names in Schedule I or Schedule II bears to
the aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares which any Underwriter has agreed to
purchase pursuant to Schedule I or Schedule II be increased pursuant to this
Article VIII by an amount
22
23
in excess of one-ninth of such number without the written consent of such
Underwriter. If, at the Closing Time, any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased, and arrangements satisfactory to you and
the Company for the purchase of such Firm Shares are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either you or
the Company shall have the right to postpone the Closing Time, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Date of Delivery, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, shall be reimbursed for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
* * * * * *
Very truly yours,
23
24
DELPHI AUTOMOTIVE SYSTEMS
CORPORATION
By:
---------------------------------
Name:
Title:
24
25
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX, SACHS & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXXX & CO. INC.
Acting severally on behalf of themselves and the
several U.S. Underwriters named in Schedule I
hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
-----------------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
XXXXXXX SACHS INTERNATIONAL
XXXXXXX XXXXX INTERNATIONAL
XXXXXXXXX, LUFKIN & XXXXXXXX
INTERNATIONAL
J. XXXXX XXXXXXXX & CO. LIMITED
Acting severally on behalf of themselves and the
several International Underwriters named in
Schedule II hereto.
By: Xxxxxx Xxxxxxx & Co. International Limited
By:
----------------------------------
Name:
Title:
25
26
SCHEDULE I
U.S. UNDERWRITERS
NUMBER OF FIRM SHARES
UNDERWRITER TO BE PURCHASED
-------------------------------------------------------------- ----------------------
Xxxxxx Xxxxxxx & Co. Incorporated.............................
Xxxxxxx, Sachs & Co...........................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated...............................................
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation.....................................
Xxxxxxxx & Co. Inc............................................
[NAMES OF OTHER U.S.
UNDERWRITERS]................................................. -----------------------
Total U.S. Firm Shares.................................. 85,000,000
-----------------------
-----------------------
27
SCHEDULE II
INTERNATIONAL UNDERWRITERS
NUMBER OF FIRM SHARES
UNDERWRITER TO BE PURCHASED
----------------------------------------------------------- -----------------------
Xxxxxx Xxxxxxx & Co. International Limited....................
Xxxxxxx Sachs International...................................
Xxxxxxx Xxxxx International...................................
Xxxxxxxxx, Lufkin & Xxxxxxxx International....................
J. Xxxxx Xxxxxxxx & Co. Limited...............................
[NAMES OF OTHER INTERNATIONAL
UNDERWRITERS............................................ ---------------------------
Total International Shares.............................. 15,000,000
---------------------------
---------------------------
28
EXHIBIT A
100,000,000 Shares
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
(a Delaware corporation)
Common Stock
($0.01 Par Value Per Share)
PRICING AGREEMENT
_______, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxxxx & Co. Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Sachs International
Xxxxxxx Xxxxx International
Xxxxxxxxx, Lufkin & Xxxxxxxx International
J. Xxxxx Xxxxxxxx & Co. Limited
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
29
Dear Sirs and Mesdames:
Reference is made to the Underwriting Agreement, dated _____, 1999 (the
"Underwriting Agreement"), relating to the purchase by the several Underwriters
named in Schedule I thereto (the "UNDERWRITERS"), of the above shares of Common
Stock (the "SHARES") of Delphi Automotive Systems Corporation (the "COMPANY").
Pursuant to Article I of the Underwriting Agreement, the Company agrees
with each Underwriter as follows:
(1) The initial public offering price per share for the Shares,
determined as provided in said Article I, shall be $_____.
(2) The purchase price per share for the Shares to be paid by the
several Underwriters shall be $____, being an amount equal to the initial public
offering price set forth above less $____ per share.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
* * * * * *
Very truly yours,
DELPHI AUTOMOTIVE SYSTEMS
CORPORATION
By:
-----------------------------------
Name:
Title:
2
30
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX, SACHS & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXXX & CO. INC.
Acting severally on behalf of themselves and the
several U.S. Underwriters named in Schedule I
to the Underwriting Agreement.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
-------------------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
XXXXXXX SACHS INTERNATIONAL
XXXXXXX XXXXX INTERNATIONAL
XXXXXXXXX, LUFKIN & XXXXXXXX
INTERNATIONAL
J. XXXXX XXXXXXXX & CO. LIMITED
Acting severally on behalf of themselves and the
several International Underwriters named in
Schedule II to the Underwriting Agreement.
By: Xxxxxx Xxxxxxx & Co. International Limited
By:
-------------------------------------
Name:
Title:
3
31
EXHIBIT B
[FORM OF LOCK-UP LETTER]
____________, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxxxx & Co. Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Sachs International
Xxxxxxx Xxxxx International
Xxxxxxxxx, Lufkin & Xxxxxxxx International
J. Xxxxx Xxxxxxxx & Co. Limited
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL")
propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT")
with Delphi Automotive Systems Corporation, a Delaware corporation (the
"COMPANY") providing for the public offering (the "PUBLIC OFFERING") by the
several Underwriters, including Xxxxxx Xxxxxxx and MSIL (the "UNDERWRITERS") of
up to 115,000,000 shares (the "SHARES") of the Common Stock, par value $0.01 per
share of the Company (the "COMMON STOCK").
32
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the Underwriters, he, she or it will not, during the period commencing
on the date hereof and ending 180 days after the date of the final prospectus
relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (a) the sale of any
Shares to the Underwriters pursuant to the Underwriting Agreement, (b)
transactions relating to shares of Common Stock or other securities acquired in
open market or other transactions after the completion of the Public Offering,
(c) transactions in shares of General Motors common stock and (d) the
Distribution (as such term is defined in the Registration Statement). In
addition, the undersigned agrees that, without the prior written consent of
Xxxxxx Xxxxxxx on behalf of the Underwriters, he, she or it will not,except in
connection with the Distribution, during the period commencing on the date
hereof and ending 180 days after the date of the Prospectus, make any demand for
or exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
GENERAL MOTORS CORPORATION
By:
---------------------------------------------
Name:
Title:
2
