FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment (the "Amendment"), dated as of October
28, 2002, between MGIC Investment Corporation, a Wisconsin corporation (the
"Company"), and U.S. Bank National Association ("U.S. Bank"), to the Rights
Agreement (the "Rights Agreement") between the Company and U.S. Bank (as
successor Firstar Bank Milwaukee, N.A.), dated as of July 22, 1999.
W I T N E S S E T H
WHEREAS, the Company and U.S. Bank previously entered into the Rights
Agreement, pursuant to which U.S. Bank was appointed to serve as the Rights
Agent; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, under
circumstances set forth therein, (i) the Company may supplement or amend any
provision of the Rights Agreement without the approval of any holders of
certificates representing Common Shares of the Company, and (ii) upon the
delivery of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance with the terms
of Section 27 of the Rights Agreement, the Rights Agent shall execute such
supplement or amendment; and
WHEREAS, the Company desires to amend the Rights Agreement as set forth
herein and direct U.S. Bank as Rights Agent to execute this Amendment.
NOW, THEREFORE, in consideration of the promises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Direction to Rights Agent. The Company hereby directs U.S. Bank,
in its capacity as Rights Agent and in accordance with the terms of Section 27
of the Rights Agreement, to execute this Amendment.
Section 2. Certification of Appropriate Officer. The undersigned officer of
the Company, being duly authorized on behalf of the Company, hereby certifies on
behalf of the Company to U.S. Bank that (a) he is an "appropriate officer" as
such term is used in Section 27 of the Rights Agreement, and (b) this Amendment
is in compliance with Section 27 of the Rights Agreement.
Section 3. Amendment of Rights Agreement. Section 21 of the Rights
Agreement is hereby amended and restated in its entirety to read as follows:
"Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties
under this Agreement upon 90 days' notice in writing mailed to the
Company and to each
transfer agent of the Common Shares by registered or certified mail,
and to the holders of the Right Certificates by first-class mail. The
Company may remove the Rights Agent or any successor Rights Agent upon
90 days' notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the
Common Shares by registered or certified mail, and to the holders of
the Right Certificates by first-class mail. If the Rights Agent and
the transfer agent of the Common Shares are the same Person, the
appointment of a successor transfer agent for the Common Shares shall
without any further action be the appointment of such Person as
successor Rights Agent. If the Rights Agent and the transfer agent of
the Common Shares are the same Person, notwithstanding the foregoing
notice provisions, (a) prior to the Distribution Date, no notice of
resignation or removal need be given to holders of the Rights, and (b)
a resignation notice from, and a removal notice to, the Rights Agent
shall be given upon such number of days' notice as is specified in the
agreement governing the Rights Agent's services as transfer agent, as
such agreement may be amended from time to time. If the Rights Agent
and the transfer agent are not the same Person, and the Rights Agent
shall resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Rights Agent. If
the Company shall fail to make such appointment within a period of 90
days after giving notice of such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate
(who shall, with such notice, submit his Right Certificate for
inspection by the Company), then the registered holder of any Right
Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be (a) a
corporation organized and doing business under the laws of the United
States or of the State of New York or the State of Wisconsin (or of
any other state of the United States so long as such corporation is
authorized to do business as a banking institution in the State of New
York or the State of Wisconsin), in good standing, having an office or
agency in the State of Wisconsin or the State of New York, which is
authorized under such laws to exercise corporate trust or stock
transfer powers and is subject to supervision or examination by
federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at least
$50 million, or (b) an Affiliate of a corporation described in clause
(a) of this sentence. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent
without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the
time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment, the Company
shall file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Shares, and, if such appointment
is on or after the Distribution Date, mail a notice thereof in writing
to the registered holders of the Right Certificates. Failure to give
any notice provided for in this Section 21, however, or any defect
therein, shall not
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affect the legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights Agent, as the
case may be."
Section 4. Effectiveness and Continued Effectiveness. In accordance with
the resolutions of the Company's Board of Directors adopted on October 24, 2002,
the amendment to Section 21 of the Rights Agreement set forth in Section 3
above is effective as of the time at which such resolutions were adopted. The
parties hereto hereby acknowledge and agree that, except as specifically
supplemented and amended, changed or modified in Section 3 above, the Rights
Agreement, as previously amended to the date hereof, shall be unaffected by this
Amendment and remain in full force and effect in accordance with its terms.
Section 5. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
one and the same instrument.
Section 6. Defined Terms. Except as otherwise expressly provided herein, or
unless the context otherwise requires, all terms used but not defined herein
have the meanings assigned to them in the Rights Agreement.
Section 7. Governing Law. This Amendment shall be deemed to be a contract
made under the laws of the State of Wisconsin and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts to be made and performed entirely within such State.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year above written.
MGIC INVESTMENT CORPORATION
By:
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Xxxxxxx X. Xxxx
Senior Vice President,
General Counsel and Secretary
U.S. BANK NATIONAL ASSOCIATION
By:
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Its:
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