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EXHIBIT 1.1
Delphi Automotive Systems Corporation
Form of Underwriting Agreement
Standard Provisions (Debt Securities)
(April , 1999)
From time to time, Delphi Automotive Systems Corporation (the
"Company"), a Delaware corporation, may enter into one or more underwriting
agreements substantially in the form of Schedule I hereto that provide for the
sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue from time to time debt securities (the
"Securities") to be issued pursuant to the provisions of an Indenture,
substantially in the form filed as an exhibit to the Registration Statement
referred to below, between the Company and The First National Bank of Chicago,
as Trustee (the "Indenture"). The Securities will have varying designations,
maturities, rates and times of payment of interest, selling prices and
redemption terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (Registration No. 333-73285) including a
prospectus relating to the Securities and has filed with, or mailed for filing
to, or proposes to file with, the Commission a prospectus supplement
specifically relating to the Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means the registration statement as amended to the date
of the Underwriting Agreement. The term "Basic Prospectus" means the prospectus
included in the Registration Statement in the form first used to confirm sales
of the Securities. The term "Prospectus" means the Basic Prospectus together
with the prospectus supplement specifically relating to the Securities in the
form first used to confirm sales of the Securities, as filed electronically
with, or mailed for filing to, the Commission pursuant to Rule 424. The term
"Preliminary Prospectus" means a preliminary prospectus supplement specifically
relating to the Securities together with the Basic Prospectus. If the Company
has filed an abbreviated registration statement pursuant to Rule 462(b) under
the Securities 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 used herein, the terms "Registration Statement",
"Basic Prospectus", "Prospectus" and "Preliminary Prospectus" shall include in
each case the material, if any, incorporated by reference therein.
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The term "Underwriters' Securities" means the Securities to be
purchased by the Underwriters pursuant to this Agreement. The term "Contract
Securities" means the Securities, if any, to be purchased pursuant to the
delayed delivery contracts referred to below.
II.
If the Prospectus provides for sales of Securities pursuant to delayed
delivery contracts, the Company hereby authorizes the Underwriters to solicit
offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule II attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as herein defined), the Company will pay the managing Underwriter
or Underwriters of the offering of the Securities (the "Manager") as
compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of Delayed Delivery Contracts. If the Company
executes and delivers Delayed Delivery Contracts with institutional investors,
the Contract Securities shall be deducted from the Securities to be purchased by
the several Underwriters and the aggregate principal amount of Securities to be
purchased by each Underwriter shall be reduced pro rata in proportion to the
principal amount of Securities set forth opposite each Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager determines that
such reduction shall be otherwise and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made to the Company
in Federal or other funds immediately available in New York City against
delivery of such Securities for the respective accounts of the several
Underwriters at the time and place set forth in this Agreement. The time and
date of such payment and delivery with respect to the Underwriters' Securities
are herein referred to as the "Closing Date."
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, no proceedings for such purpose shall be pending
before or threatened by the
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Commission, 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 the representations and warranties of the Company in this
Agreement shall be true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date; and the Manager shall have received on
the Closing Date a certificate, dated the Closing Date and signed on behalf of
the Company by an executive officer of the Company, to the foregoing effect. The
officer making such certificate may rely upon the best of his knowledge as to
proceedings threatened.
(b) The Manager shall have received on the Closing Date an opinion of
Drinker Xxxxxx & Xxxxx LLP, counsel to the Company, dated the Closing Date, to
the effect that:
(i) the Securities have been duly authorized and, when duly
executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, or by
institutional investors, if any, pursuant to Delayed Delivery
Contracts, will constitute valid and binding obligations of
the Company entitled to the benefits provided by the
Indenture, enforceable in accordance with the terms thereof
subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before
which any proceeding therefor may be brought;
(ii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a
valid and binding agreement of the Company, enforceable in
accordance with its terms subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor
may be brought); and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act);
(iv) the execution and delivery by the Company of the
Indenture, the performance of the Company's obligations under
the Indenture, the issuance of the Securities in accordance
with the Indenture and the sale of the Securities pursuant to
this Agreement do not and will not violate or conflict with
any provision of applicable law or of any agreement or
instrument listed in Schedule I to the opinion of counsel
delivered pursuant to this Article V(b) (except that such
counsel need express no opinion in this paragraph as to the
securities and Blue Sky Laws of various jurisdictions,
compliance with any disclosure requirement or any prohibition
against fraud or misrepresentation or as to whether
performance of
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any indemnification or contribution provisions would be
permitted) or the Amended and Restated Certificate of
Incorporation or By-laws of the Company 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;
(v) in connection with the offer and sale of the Securities by
the 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 the Indenture and this
Agreement other than the registration of the Securities under
the Securities Act, authorizations or qualifications required
under the Trust Indenture Act and compliance with the
insurance, securities and Blue Sky Laws of various
jurisdictions (as to which such counsel need express no
opinion);
(vi) the Securities and the Indenture conform in all material
respects to the descriptions thereof contained or incorporated
by reference in the Registration Statement and the Prospectus
and the statements in the Prospectus under "Underwriting" and
"Plan of Distribution", insofar as such statements constitute
a summary of the documents or proceedings referred to therein,
fairly present the information called for with respect to such
documents and proceedings;
(vii) the statements set forth in the Prospectus Supplement
under the heading "Certain United States Federal Tax Matters",
insofar as such statements constitute a summary of United
States federal tax law, provide a fair summary of such legal
matters.
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) no facts came to its attention that caused such counsel to
believe that (i) the Registration Statement (including the documents
incorporated by reference therein, except for (1) financial statements
and schedules and other financial and statistical data included or
incorporated by reference therein and (2) that part of the Registration
Statement that constitutes the Statement of Eligibility on Form T-1 of
the Trustee, as to which, in the case of either (1) or (2), such
counsel need express no belief), on its effective date or, if later, as
of the date of the Company's most recent filing of an Annual Report on
Form 10-K (including such Annual Report on Form 10-K), 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, or (ii) the Prospectus, on the date it bears or
as of the Closing Date, 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. Such counsel shall also
opine that the Registration Statement as of its effective date
(including all documents incorporated by reference therein) complied,
and on the date of this Agreement, the Prospectus (including all
documents incorporated by reference therein) complies, and any further
amendments or supplements
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thereto made by the Company on or prior to the date of such opinion
comply (except for (1) the financial statements and schedules and other
financial and statistical data included or incorporated by reference
therein and (2) the Form T-1, as to which such counsel need express no
opinion) as to form in all material respects with the requirements of
the Securities Act, the Exchange Act, the Trust Indenture Act and the
applicable rules and regulations under said Acts.
With respect to the opinion to be provided pursuant to the immediately
preceding paragraph, such counsel may state that its opinion and belief
are based on its participation in the preparation of the Registration
Statement and Prospectus, and any amendments or supplements thereto,
and discussion of the contents thereof, but are without independent
check or verification, except as specified. In rendering such opinion,
such counsel may (i) state that its opinion is limited to the federal
laws of the United States, the laws of the State of New York and the
General Corporation Law of the State of Delaware, (ii) rely as to
matters of fact upon the representations contained in this Agreement
and the certificates of officers of the Company and its subsidiaries
and of public officials and (iii) rely on the opinions of other counsel
reasonably acceptable to Underwriters' counsel as to matters governed
by the laws of the State of New York.
(c) The Manager shall have received on the Closing Date an
opinion of Xxxxx X. Xxxxxxxx, General Counsel of the Company, dated the
Closing Date, 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
other jurisdiction in which it owns or leases properties or conducts
any business, in each case so as to require such qualification;
(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 other jurisdiction in which it owns or leases
properties or conducts any business, in each case so as to require such
qualification;
(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, to the best knowledge of such counsel, free and clear
of all liens, encumbrances, equities or claims;
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(iv) other than as set forth or contemplated in the
Prospectus, there are no governmental investigations, legal or
governmental actions, suits or proceedings pending or, to the best of
such counsel's knowledge, threatened against or affecting the Company
or any of its subsidiaries or any of their respective properties or to
which the Company or any of its subsidiaries is or may be a party or to
which any property of the Company or its subsidiaries is or may be
subject which, if determined adversely to the Company or any of its
subsidiaries, would, individually or in the aggregate, have, or
reasonably be expected to have, a material adverse effect on the
business, financial position or results of operations of the Company
and its subsidiaries taken as a whole; to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and such counsel does
not know of any such pending or threatened action, suit or proceeding
or of any statutes, regulations, contracts or other documents required
to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or the Prospectus which are
not filed or described as required; and
(v) to the best of such counsel's knowledge, neither
the Company nor any of its Significant Subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or
in default under, in any material respect, its Articles of
Incorporation or By-Laws;
In rendering such opinion, such counsel may (i) state that his
opinion is limited to the federal laws of the United States, the laws
of the State of Michigan and of the State of New York and the General
Corporation Law of the State of Delaware and (ii) rely as to matters of
fact upon certificates of officers of the Company and its subsidiaries
and of public officials.
(d) The Manager shall have received on the Closing Date an
opinion of O'Melveny & Xxxxx, LLP, counsel for the Underwriters, dated
the Closing Date with respect to the validity of the Indenture and the
Securities, the Registration Statement, the Prospectus and other
related matters as the Underwriters may reasonably request, and such
counsel shall have received such papers and information as it may
reasonably request to enable it to pass upon such matters.
(e) The Manager shall have received on the Closing Date a
letter dated the Closing Date in form and substance satisfactory to the
Manager, from DeLoitte & Touche LLP, independent accountants,
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 or
incorporated by reference into the Registration Statement and the
Prospectus.
(f) (i) No downgrading shall have occurred in the rating
accorded the Company's securities by any "nationally recognized
statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act and
(ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's securities.
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If any condition specified in this Article V shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Manager by notice to the Company at any time at or prior to the Closing
Date, and such termination shall be without liability of any party to any other
party, except as provided in Article X.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To file the Prospectus in a form approved by the Underwriters
pursuant to Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of determination
of the offering price of the Securities or, if applicable, such earlier time as
may be required by Rule 424(b). As used herein, the term "Business Day" means
any day other than a day on which banks are permitted or required to be closed
in New York City.
(b) To furnish the Manager, without charge, a copy of the Registration
Statement including exhibits and materials, if any, incorporated by reference
therein and, during the period mentioned in paragraph (d) below, as many copies
of the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto as the Manager may reasonably request.
(c) From the date hereof and prior to the completion of the offering of
the Securities, before amending or supplementing the Registration Statement or
the Prospectus, to furnish the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which
the Manager reasonably objects, 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 Securities Act any prospectus required
to be filed pursuant to such rule.
(d) If, during such period after the first date of the public offering
of the Securities as in the opinion of counsel for the Underwriters, the
Prospectus is required by law to be delivered, 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, 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 so amended or supplemented, will comply with applicable law.
(e) To promptly advise the Manager of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any
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proceeding for that purpose, and of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(f) To endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky Laws of such jurisdictions as the Manager shall
reasonably request and to pay all reasonable expenses (including reasonable fees
and disbursements of counsel) in connection with such qualification.
(g) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the twelve-month period
beginning with the first fiscal quarter of the Company occurring after the
effective date of the Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder.
(h) During the period beginning from the date of this Agreement and
continuing to and including the later of (i) the termination of trading
restrictions for the Securities, as notified to the Company by the Manager and
(ii) the Closing Date, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company which mature more than one year after the
Closing Date and which are substantially similar to the Securities, without the
prior written consent of the Manager.
VII.
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 stated therein or necessary to make the statements therein not misleading,
(ii) the Registration Statement and the Prospectus (as amended or supplemented,
if applicable), comply and will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (iii) on the Effective Date and the Closing Date, respectively, the
Indenture conformed and will conform in all material respects with the
requirements of the Trust Indenture Act and the applicable rules and regulations
thereunder, (iv) the documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the Securities
Act, at the time they were filed with the Commission, complied in all material
respects with the requirements of the Exchange Act; no such document when it was
filed contained and, when read together with the other information in the
Prospectus (as amended or supplemented, if applicable), at the time the
Registration Statement became effective and as of the date hereof, did not and
do not contain, an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (v) the Prospectus, on the date it bears and as of the Closing
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Date, 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 (i) 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 expressly for use therein and (ii) that part of the Registration
Statement which constitutes the Statement of Eligibility and Qualification (Form
T-1) of the Trustee under the Trust Indenture Act.
(c) The Company has been duly incorporated, is validly existing as a
company 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 to 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 company
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 to 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 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.
(f) The Securities have been duly authorized and, when duly executed
and authenticated in accordance with the terms of the Indenture and delivered to
and paid for by the Underwriters in accordance with the terms of this Agreement,
or by institutional investors, if any, pursuant to Delayed Delivery Contracts,
will constitute valid and binding obligations of the Company entitled to the
benefits provided by the Indenture, enforceable in accordance with the terms
thereof subject to (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought);
(g) The Indenture has been duly authorized and duly qualified under the
Trust Indenture Act and, when executed and delivered by the Company and the
Trustee, the Indenture will
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constitute a valid and binding instrument enforceable in accordance with its
terms, subject to (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought; and the Securities and the
Indenture will conform to the descriptions thereof in the Prospectus.
(h) The execution, delivery and performance of the Company's
obligations under the Indenture, the issuance of the Securities in accordance
with the Indenture and the sale of the Securities pursuant to this Agreement do
not and will not violate or conflict with (i) any provision of applicable law,
except that enforcement of rights to indemnity and contribution may be limited
by Federal or state securities laws or principles of public policy, (ii) the
Certificate of Incorporation or By-laws of the Company or (iii) any agreement or
instrument listed in Schedule I to the opinion of counsel delivered pursuant to
Article V(b) hereunder or any other agreement or other instrument binding upon
the Company or any of its subsidiaries, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, except for violations or conflicts that would not, singularly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries as a whole.
(i) In connection with the offer and sale of the Securities by the
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 the Indenture and
this Agreement other than the registration of the Securities under the
Securities Act, authorizations or qualifications required under the Trust
Indenture Act and compliance with the insurance, securities and Blue Sky Laws of
various jurisdictions.
VIII.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended, 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 furnished in writing to the Company by any Underwriter 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 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
Securities, 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
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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 Securities 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 VI(b)
hereof.
Each Underwriter severally, and not jointly, agrees to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and any person controlling the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to information relating to such Underwriter furnished in writing
by such Underwriter 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 either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (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 reasonable 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 reasonable 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 local counsel) for all
such indemnified parties, and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by the
Manager in the case of parties indemnified pursuant to the second preceding
paragraph and by the Company in the case of parties indemnified pursuant to the
first preceding paragraph. 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.
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If the indemnification provided for in the first or second paragraph of
this Article VIII is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party 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 Securities 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 in connection with the statements or omissions that 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 in connection with the offering of
the Securities shall be deemed to be in the same respective proportions as the
net proceeds from the offering of such Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters bear to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and of the
Underwriters on the other 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 Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VIII 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 that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amounts paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraphs 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 VIII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten and distributed to the public by such
Underwriter 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' respective
obligations to contribute pursuant to this Article VIII are several, in
proportion to the respective principal amounts of Securities purchased by each
of such Underwriters, and not joint. The remedies provided for in this Article
VIII are not exclusive and shall not limit any rights or remedies that may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Article
VIII 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
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investigation made by any Underwriter or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the Company, its
directors or officers or any person controlling the Company and (iii) acceptance
of any payment for any of the Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Company, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (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 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 the Manager's reasonable judgment,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
X.
If as of the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase the Securities that it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of the
Securities that such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate principal amount
of the Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of the
Securities set forth opposite their names in this Agreement bears to the
aggregate principal amount of the Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the Manager
may specify, to purchase the Securities that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of the Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Article X by an amount in excess of one-tenth of such amount
without the written consent of such Underwriter. If on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Securities and the
aggregate principal amount of the Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of the
Securities to be purchased, and arrangements satisfactory to the Underwriters
and the Company for the purchase of such Securities 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 the
Underwriters or the Company shall have the right to postpone the Closing Date,
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. 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.
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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 Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Securities.
This Agreement may be signed in any number of 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.
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15
SCHEDULE I
Underwriting Agreement
[date]
Delphi Automotive Systems Corporation
0000 Xxxxxx Xxxxx
Xxxx, XX 00000
Dear Sirs:
We (the "Underwriters") understand that Delphi Automotive Systems
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
$__________ aggregate principal amount of _____ % [title of issue] Due _________
(the "Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to sell and we agree
to purchase, severally and not jointly, the principal amounts of such Securities
set forth below opposite our names at _____ % of their principal amount and
accrued interest, if any, from ______________ , 1999 to the date of payment and
delivery:
NAME OF UNDERWRITER PRINCIPAL AMOUNT
$
====================
The Underwriters will pay for such Securities upon delivery thereof at
the offices of _____________________ at _______ a.m. (New York time) on
________________ , 1999, as shall be designated by the Manager. The Securities
shall have the terms set forth in the Company's Prospectus Supplement dated
________________ , 19__ relating to the Securities and the Prospectus dated
________________ , 19__, particularly as follows:
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
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Other Principal Terms:
All the provisions contained in the document entitled "Delphi
Automotive Systems Corporation Form of Underwriting Agreement Standard
Provisions (Debt Securities) (March 1999)" filed as Exhibit 1 to the Company's
Registration Statement on Form S-3 (File No. 333-73285), a copy of which we have
previously received, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein. The term "Manager" as used
therein, for purposes of this Agreement, means [name of Underwriter].
Any other terms and conditions agreed to by such underwriter(s) and the
Company.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below. This Agreement may be
signed in any number of counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument.
Very truly yours,
[Name of Manager]
On behalf of itself and the other
Underwriters named heretofore
By: _________________________
Accepted:
Delphi Automotive Systems Corporation
By: _________________________
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Schedule II
DELAYED DELIVERY CONTRACT
, 1999
_______________
Dear Sirs:
The undersigned hereby agrees to purchase from Delphi Automotive
Systems Corporation, a Delaware corporation (the "Company") and the Company
agrees to sell to the undersigned $__________ principal amount of the Company's
[state title of issue] (the "Securities"), offered by the Company's Prospectus
dated ________________ , 1999 and Prospectus Supplement dated ________________ ,
19__, receipt of copies of which are hereby acknowledged, at a purchase price of
_____ % of the principal amount thereof plus accrued interest, if any, and on
the further terms and conditions set forth in this contract. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery dates set forth below:
DELIVERY PRINCIPAL PLUS ACCRUED
DATE AMOUNT INTEREST FROM:
$
----------------- ------------------ -----------------
$
----------------- ------------------ -----------------
$
----------------- ------------------ -----------------
Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".
Payment for the Securities that the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
__________________ , New York, NY, at ______ a.m. (New York time) on the
Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the Delivery Date, in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and
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delivery shall have taken place to the underwriters (the "Underwriters") named
in the Prospectus Supplement referred to above, such part of the Securities as
is to be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the laws of
the State of New York.
Very truly yours,
----------------------------------------
(Purchaser)
By:
-------------------------------------
Title:
----------------------------------
----------------------------------------
----------------------------------------
(Address)
Accepted:
Delphi Automotive Systems Corporation
By:
-----------------------------
Title:
--------------------------
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