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EXHIBIT 1.2
, 1999
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Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
We refer to the Underwriting Agreement (the "UNDERWRITING AGREEMENT")
dated as of the date hereof among Delphi Automotive Systems Corporation (the
"COMPANY") and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation and Xxxxxxxx & Co. Inc., as representatives of the
several U.S. Underwriters named in Schedule I thereto, and Xxxxxx Xxxxxxx & Co.
International Limited, Xxxxxxx Sachs International, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
International and J. Xxxxx Xxxxxxxx & Co. Limited, as representatives of the
several International Underwriters named in Schedule II thereto. Pursuant to the
Underwriting Agreement, the Company proposes to issue and sell (the "OFFERING")
to the several Underwriters (as defined therein) up to 100,000,000 shares of its
Common Stock, par value $0.01 per share (the "SHARES"). The proposed principal
terms of the Offering are set forth in the Underwriting Agreement, and are
incorporated by reference herein. The parties hereto acknowledge that the
provisions of the Underwriting Agreement shall apply to the parties hereunder,
and that such parties shall be entitled to the rights and subject to the
obligations contained in the Underwriting Agreement.
As part of the offering contemplated by the Underwriting Agreement, Xxxxxx
Xxxxxxx & Co. Incorporated has agreed to reserve, as part of the Offering, up
to _______ Shares for sale by Xxxxxxx Xxxxx Barney Inc. ("XXXXXXX XXXXX XXXXXX")
to certain of the Company's employees, officers and directors who reside in the
United States as designated by the Company (collectively, "SSB PARTICIPANTS"),
as set forth in the Prospectus under the heading "Underwriters" (the "SSB
DIRECTED SHARE PROGRAM"). The Shares to be sold by Xxxxxxx Xxxxx Barney pursuant
to the SSB Directed Share Program (the "SSB DIRECTED SHARES") will be sold by
Xxxxxxx Xxxxx Xxxxxx pursuant to this Agreement at the public offering price set
forth in the Pricing Agreement (as such term is defined in the Underwriting
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Agreement) in the jurisdictions designated by the Company. Any Directed Shares
not orally confirmed for purchase by any SSB Participants by the end of the
first business day after the date on which this Agreement is executed will be
returned to Xxxxxx Xxxxxxx & Co. Incorporated for offer to the public as set
forth in the Prospectus. As a condition to the purchase by any SSB Participant
of any SSB Directed Shares, Xxxxxxx Xxxxx Barney will require each Participant
to complete appropriate documentation relating to the SSB Directed Share
Program, in form and substance satisfactory to the Company, that, among other
things, such Participant (a) is a resident of the United States and (b) agrees
to the restrictions on the Directed Shares set forth in Section 1 below.
1. Covenants of the Company. In further consideration of the
agreements of Xxxxxxx Xxxxx Xxxxxx herein contained, the Company covenants that
in connection with the SSB Directed Share Program, the Company will ensure that
the Directed Shares of SSB Participants will be restricted, without exception,
from any sale, transfer, assignment, pledge or hypothecation, except with the
consent of Xxxxxxx Xxxxx Barney, for a period of six months following the date
of the effectiveness of the Registration Statement by directing the transfer
agent to place stop transfer restrictions upon the Directed Shares for such
period of time.
2. Representations and Warranties. The Company represents and warrants
to Xxxxxxx Xxxxx Xxxxxx that 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.
3. Indemnification and Contribution. The indemnification and
contribution provisions of Section VII of the Underwriting Agreement shall apply
hereto as if stated herein, with the same force and effect as if used herein.
Furthermore, the provisions of the second paragraph and the last sentence of the
fourth paragraph of Section VII of the Underwriting Agreement shall apply to
Xxxxxxx Xxxxx Barney as if Xxxxxxx Xxxxx Xxxxxx were the party named therein
instead of Xxxxxx Xxxxxxx & Co. Incorporated.
4. Miscellaneous. 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 may
not be amended except in writing signed by all parties hereto.
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This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
The several obligations of Xxxxxxx Xxxxx Barney hereunder will be
subject to satisfactory completion of all of the obligations and conditions
contained in the Underwriting Agreement.
This Agreement may be terminated by Xxxxxxx Xxxxx Xxxxxx at any time or
by the Company at any time after 60 days from the date hereof upon written
notice. The indemnification and contribution provisions of Section 3 and the
governing law provision of Section 4 contained herein shall survive any
termination of this Agreement.
* * * * *
Very truly yours,
DELPHI AUTOMOTIVE SYSTEMS
CORPORATION
By:
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Name:
Title:
Accepted as of the date hereof
XXXXXXX XXXXX BARNEY INC.
By:
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Name: Xxxxx X. Xxxxxx
Title: Managing Director
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