UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
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Date of Report
(Date of earliest
event reported): March 13, 2002
MGIC Investment Corporation
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(Exact name of registrant as specified in its charter)
Wisconsin 1-10816 39-1486475
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(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
MGIC Plaza, 250 East Kilbourn Avenue
Milwaukee, Wisconsin 53202
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(Address of principal executive offices including zip code)
(414) 347-6480
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(Registrant's telephone number)
Item 5. Other Events and Regulation FD Disclosure.
On March 13, 2002, MGIC Investment Corporation, a Wisconsin corporation
(the "Company"), agreed to sell $200,000,000 aggregate principal amount of its
6% Senior Notes due 2007 (the "Senior Notes") in a public offering through Banc
of America Securities LLC, BNP Paribas Securities Corp., Deutsche Banc Alex.
Brown Inc. and Fleet Securities, Inc. The closing for the sale of the Senior
Notes is scheduled for March 18, 2002. The Senior Notes are registered on a
Registration Statement on Form S-3 (Registration No. 333-39890) as filed with
the Securities and Exchange Commission. Final versions of the Underwriting
Agreement, among the Company and the underwriters named therein, and the
Officer's Certificate creating the Senior Notes are filed herewith.
Item 7. Financial Statements and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits.
The exhibits listed in the accompanying Exhibit Index
are filed as part of this Current Report on Form 8-K.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MGIC INVESTMENT CORPORATION
Date: March 15, 2002 By: /s/ Patrick Sinks
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Patrick Sinks
Senior Vice President and Chief
Accounting Officer
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MGIC INVESTMENT CORPORATION
EXHIBIT INDEX TO FORM 8-K
Report Dated March 13, 2002
Exhibit Number Description
(1) Underwriting Agreement, dated as of March 13, 2002,
by and among MGIC Investment Corporation and the
underwriters, including Banc of America Securities
LLC, BNP Paribas Securities Corp., Deutsche Banc
Alex. Brown Inc. and Fleet Securities, Inc.
(4) Officer's Certificate, dated as of March 13,
2002, executed and delivered in connection
with the issuance and sale of MGIC Investment
Corporation's 6% Senior Notes due 2007.
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$200,000,000
MGIC INVESTMENT CORPORATION
6% Senior Notes due 2007
Underwriting Agreement
March 13, 2002
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
MGIC INVESTMENT CORPORATION, a Wisconsin corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under an Indenture, dated as
of October 15, 2000 (the "Indenture"), between the Company and Bank One Trust
Company, National Association, as trustee thereunder (the "Trustee"). If the
firm or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives", as
used herein, shall each be deemed to refer to such firm or firms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-39890) under the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), relating to certain
debt securities (the "Shelf Securities") and the offering thereof from time to
time in accordance with Rule 415 of Regulation C under the Securities Act by the
Company. Such registration statement and each post-effective amendment thereto,
if applicable, has been declared effective by the Commission. Such registration
statement, as so amended, if applicable, to the date of this Agreement
(including the exhibits and schedules thereto), is hereinafter referred to as
the "Registration Statement"; provided that in the event any post-effective
amendment to such registration statement or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, the term "Registration
Statement" shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. The prospectus covering
the Shelf Securities (the "Basic Prospectus"),
as supplemented by the prospectus supplement specifically relating to the
Securities, in the forms first used to confirm sales of the Securities, are
collectively hereinafter referred to as the "Prospectus". Any reference in this
Agreement to the Registration Statement, the Basic Prospectus, any preliminary
form of prospectus (a "preliminary prospectus") previously filed with the
Commission pursuant to Rule 424 of Regulation C under the Securities Act or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act,
which were filed under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Exchange
Act"), on or before the date of this Agreement or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be;
and any reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed under the
Exchange Act after the date of this Agreement or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations, warranties and agreements of the Company herein contained, but
subject to the conditions hereinafter stated, agrees to purchase, severally and
not jointly, from the Company the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule II hereto at the purchase
price set forth in Schedule I hereto plus accrued interest, if any, from the
date specified in Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to
make a public offering of their respective portions of the Securities in
conformity with the Securities Act, any applicable blue sky laws and all other
rules and regulations applicable to them in connection therewith and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its
order by wire transfer of same-day funds to an account designated by the Company
or, if specifically requested by the Company, by certified or official bank
check or checks payable to the Company in federal or other same-day funds on the
date and at the time and place set forth in Schedule I hereto (or at such other
time and place on the same or such other date, not later than the tenth Business
Day (as hereinafter defined) thereafter, as you and the Company may agree in
writing). Such payment will be made upon delivery to, or to you for the
respective accounts of, such Underwriters of the Securities through the
facilities of The Depository Trust Company or, if specifically requested by the
Representatives, in certificated form registered in such names and in such
denominations as you shall request not less than one full Business Day prior to
the date of delivery, or with any transfer taxes payable in connection with
transfer to the Underwriters duly paid by the Company. As used herein, the term
"Business Day" means
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any day other than a day on which banks are authorized or required to be closed
in the City of New York or Milwaukee, Wisconsin. The time and date of such
payment and delivery with respect to the Securities are collectively hereinafter
referred to as the "Closing Date." The certificates for the Securities will be
made available for inspection and packaging by you by 1:00 P.M. on the Business
Day prior to the Closing Date at such place in the City of New York as you and
the Company shall agree.
4. The Company represents and warrants to each Underwriter as of the date
hereof and as of the Closing Date (each, a "Representation Date") that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act. The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission; the Registration Statement and Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) comply, or will comply, as the case may be, when they become effective
or are filed with the Commission, as the case may be, in all material respects
with the Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Trust
Indenture Act"); as of the applicable effective date and each Representation
Date, the Registration Statement and any amendment thereto did not and will 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 not
misleading; and as of the applicable filing date and each Representation Date,
the Prospectus and any amendment or supplement thereto did not and will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the foregoing representations and warranties shall not apply to (i) that
part of the Registration Statement which constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee, and (ii)
statements or omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for inclusion therein.
(b) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, complied in all material respects with the
requirements of the Exchange Act, and none of such documents, when they were so
filed, included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, when such
documents are filed with the Commission, will comply in all material respects
with the requirements of the Exchange Act, as applicable, and will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(c) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding agreement of the Company, except
as rights to indemnity and contribution hereunder may be limited by applicable
law.
(d) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company, enforceable in
accordance with its terms (except as the enforceability thereof may be limited
by bankruptcy, insolvency and other laws affecting the enforceability of
creditors' rights generally and general principles of equity and an implied
covenant of good faith and fair dealing), the Securities have been duly
authorized by the Company and, when 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, will have been duly
executed and delivered by the Company and will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms and the
terms of the Indenture (except as the enforceability thereof may be limited by
bankruptcy, insolvency and other laws affecting the enforceability of creditors'
rights generally and general principles of equity and an implied covenant of
good faith and fair dealing), and holders of the Securities will be entitled to
the benefits provided by the Indenture; and the Securities and the Indenture
conform in all material respects to the descriptions thereof in the Prospectus.
(e) The Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of Wisconsin, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing (or the
local equivalent) under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
except where the failure to so qualify or to be in good standing would not
result in a material adverse effect on the business, financial position or
results of operations of the Company and its subsidiaries taken as a whole,
whether or not arising in the ordinary course of business (a "Material Adverse
Effect").
(f) Each of the Company's subsidiaries that constitutes a "significant
subsidiary" (as such term is defined in Rule 1-02 of Regulation S-X) as of the
last day of the Company's most recent fiscal quarter (each a "Subsidiary" and
collectively, the "Subsidiaries") has been duly organized and is validly
existing as a corporation or limited liability company in good standing under
the laws of the jurisdiction of its incorporation or organization, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation or limited liability company for the transaction of business
and is in good standing (or the local equivalent) under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, except where the failure to so qualify or to
be in good standing would not result in a Material Adverse Effect.
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(g) The authorized, issued and outstanding shares of capital stock of the
Company is as set forth in the column entitled "Actual" under the
"Capitalization" section of the Prospectus, and such shares of capital stock
have been duly authorized and validly issued by the Company and are fully paid
and non-assessable (except for certain statutory liabilities that may be imposed
by Section 180.0622(2)(b) of the Wisconsin Business Corporation Law (the "WBCL")
for unpaid employee wages), and none of such shares of capital stock was issued
in violation of pre-emptive or other similar rights of any security holder of
the Company; all of the outstanding shares of capital stock or limited liability
company interests of each Subsidiary have been duly authorized and validly
issued and are fully paid and non-assessable (except, in the case of
Subsidiaries that are Wisconsin corporations, for certain statutory liabilities
that may be imposed by Section 180.0622(2)(b) of the WBCL for unpaid employee
wages), and, except as otherwise set forth in the Prospectus, all outstanding
shares of capital stock of the Subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances.
(h) The financial statements and schedules of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Prospectus and the Registration Statement present fairly in all material
respects the consolidated financial condition, results of operations and cash
flows of the Company and its consolidated subsidiaries as of the dates and for
the periods indicated, comply as to form with the applicable accounting
requirements of the Securities Act or the Exchange Act, as applicable, and have
been prepared in conformance with United States generally accepted accounting
principles applied on a consistent basis throughout the periods involved (except
as otherwise noted therein).
(i) PricewaterhouseCoopers LLP, who have certified the financial
statements included or incorporated by reference in the Prospectus, are
independent public accountants as required by the Securities Act.
(j) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein,
(A) there has been no material adverse change, or any development involving a
prospective material adverse change, in or affecting the business, financial
position or results of operations of the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of business (a "Material
Adverse Change") and (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those arising in the ordinary
course of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise.
(k) The execution, delivery and performance of this Agreement, the
Indenture and any other agreement or instrument entered into or issued or to be
entered into or issued by the Company in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated herein and in
the Registration Statement and the Prospectus and compliance by the Company with
its obligations
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hereunder and thereunder do not and will not conflict with or result in a breach
of, or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any assets, properties or operations of the
Company or any of its subsidiaries pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound or to which any of the assets,
properties or operations of the Company or any of its subsidiaries is subject
(collectively, the "Agreements and Instruments") the result of which would have
a Material Adverse Effect, nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or any of its Subsidiaries or
any applicable law or statute or any order, rule, regulation or judgment of any
court or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their assets, properties or operations, except for
any such violations that would not, individually or in the aggregate, result in
a Material Adverse Effect.
(l) There is no action, suit, proceeding, inquiry or investigation before
or brought by any court or governmental agency or body now pending, or to the
knowledge of the Company threatened, against or affecting the Company or any of
its subsidiaries which is required to be disclosed in the Registration Statement
and the Prospectus (other than as stated therein, including documents
incorporated by reference), or which might reasonably be expected to result in a
Material Adverse Effect (other than as stated therein, including the documents
incorporated by reference), or have a material adverse effect on the
consummation of the transactions contemplated under the Prospectus, this
Agreement or the Indenture or the performance by the Company of its obligations
hereunder and thereunder; and the aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party or of
which any of their respective assets, properties or operations is the subject
which is not described in the Registration Statement and the Prospectus,
including ordinary routine litigation incidental to the business, is not
reasonably expected to result in a Material Adverse Effect.
(m) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the due authorization, execution and delivery by the Company of this
Agreement or for the performance by the Company of the transactions contemplated
under the Prospectus, this Agreement or the Indenture, except such as have
already been made, obtained or rendered, as applicable, and such as may be
required under state securities laws.
(n) Each insurance company subsidiary of the Company (collectively, the
"Insurance Subsidiaries") is duly licensed as an insurance company in its
jurisdiction of organization and is duly licensed or authorized as an insurer in
each jurisdiction outside its jurisdiction of organization where it is required
to be so licensed or authorized to conduct its business as described in the
Registration Statement and the Prospectuses, except where the failure to be so
licensed or authorized, individually or in the aggregate, would not result in a
Material Adverse Effect.
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(o) The Company is not and, after giving effect to the offering and sale
of the Securities and the application of the proceeds thereof as described in
the Prospectus, will not be an "investment company" as defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act").
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
5. The Company covenants and agrees with each Underwriter as follows:
(a) To file the Prospectus in a form approved by you (such approval not
to be unreasonably withheld or delayed) pursuant to Rule 424 of Regulation C
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.
(b) To deliver to each Representative and counsel for the Underwriters,
at the expense of the Company, a conformed copy of the Registration Statement
(as originally filed) and each amendment thereto, in each case including
exhibits and documents incorporated by reference therein and, during the period
mentioned in subsection (e) below, to each of the Underwriters as many copies of
the Prospectus (including all amendments and supplements thereto) and documents
incorporated by reference therein as you may reasonably request.
(c) For so long as the delivery of a prospectus is required in connection
with the offering or sale of the Securities, to furnish to you a copy of any
proposed amendment or supplement to the Registration Statement or the
Prospectus, for your review, and not to file any such proposed amendment or
supplement to which you reasonably and timely object in writing; provided,
however, that the provisions of this subsection (c) shall not apply to any of
the Company's periodic filings under the Exchange Act described in subsection
(d), copies of which filings in substantially final form the Company has
delivered to you in advance of their transmission to the Commission for filing.
(d) To file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Securities, and during such same period, to advise you promptly, and to
confirm such advice in writing, (i) when the Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant to
Rule 424 of Regulation C under the Securities Act or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (ii) when any
amendment to the Registration Statement shall have become effective, (iii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for any additional information,
insofar as such amendment or supplement relates to or covers the Company
generally or the Securities specifically, (iv) of the issuance by the Commission
of
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any stop order suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (v) of the
receipt by the Company of any notification with respect to any suspension of the
qualification of the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to use its
best efforts to prevent the issuance of any such stop order or notification and,
if issued, to obtain as soon as possible the withdrawal thereof.
(e) If, at any time when a prospectus is required to be delivered under
the Securities Act, any event shall occur or condition shall exist 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 law, promptly to prepare and furnish,
subject to subsection (c) above, at the expense of the Company (unless such
event shall occur more than nine months after the date of the Prospectus, in
which case the cost of preparing and furnishing such amendments or supplements
shall be borne by the Underwriter or Underwriters requesting the same), to the
Underwriters and to the dealers (whose names and addresses you will furnish to
the Company) to which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, such amendments or
supplements to the Prospectus as may be necessary 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 will comply with law.
(f) To make generally available to its security holders as soon as
practicable an earnings statement covering a period of at least twelve months
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.
(g) From and including the date hereof to and including the Business Day
following the Closing Date, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of, or guaranteed by, the Company which are
substantially similar to the Securities without your prior written consent.
(h) To arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may designate,
will maintain such qualifications in effect so long as required for the
distribution of the Securities and will pay any fee of the National Association
of Securities Dealers, Inc., in connection with its review of the offering;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction in which it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction in
which it is not now so subject.
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(i) To pay, except as otherwise provided in paragraph (e) above, all
costs and expenses incident to the performance of its obligations hereunder,
including, without limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance, execution, authentication
and delivery of the Securities, including any expenses of the Trustee, (ii)
incident to the preparation and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus (including
in each case all exhibits, amendments and supplements thereto), (iii) incident
to the printing and delivery to you and the other Underwriters of reasonable
quantities of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and supplements
thereto), (iv) incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the laws of
such jurisdictions as the Underwriters may designate (including the fees and
disbursements of counsel for the Underwriters in an amount not to exceed
$5,000), (v) in connection with any listing of the Securities on any stock
exchange or quotation system, (vi) related to any required filing with the
National Association of Securities Dealers, Inc., (vii) in connection with the
duplication and delivery of this Agreement, the Indenture, the Preliminary and
Final Blue Sky Memoranda and any Legal Investment Survey and (viii) payable to
rating agencies in connection with the rating of the Securities; provided,
however, that, except as provided in this Section 5(i) and in Sections 7 and 10
hereof, the Underwriters shall pay their own costs and expenses, including the
fees and expenses of their counsel, any transfer taxes on the Securities which
they may sell and the expenses of advertising any offering of the Securities
made by the Underwriters.
(j) To not take, directly or indirectly, any action designed to or which
has constituted or which might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Securities.
6. The several obligations of the Underwriters hereunder shall be subject
to the following conditions:
(a) The representations and warranties of the Company contained herein
are true and correct on and as of the Closing Date as if made on and as of the
Closing Date, and the Company shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date.
(b) The Prospectus shall have been filed with the Commission pursuant to
Rule 424 of Regulation C under the Securities Act within the applicable time
period prescribed for such filing by the rules and regulations under the
Securities Act; 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 all reasonable requests for
additional information on the part of the Commission shall have been complied
with to your reasonable satisfaction.
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(c) From and including the date of this Agreement to and including the
Closing Date, there shall not have occurred any downgrading, nor shall any
notice have been given of (i) any intended or potential downgrading or (ii) any
probable change that does not indicate an improvement in the rating accorded any
securities of, or guaranteed by, the Company by Moody's Investors Service, Inc.
or Standard & Poor's Ratings Services.
(d) Since the respective dates as of which information is given in the
Prospectus there shall not have been any Material Adverse Change, otherwise than
as set forth or contemplated in the Prospectus, the effect of which in the
judgment of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the terms and in
the manner contemplated in the Prospectus.
(e) The Representatives shall have received on and as of the Closing Date
a certificate of the Chief Financial Officer or the Treasurer of the Company,
acting in their corporate capacities, to the effect set forth in subsections (a)
through (c) of this Section 6 and to the further effect that there has not
occurred any Material Adverse Change, other than as set forth or contemplated in
the Prospectus.
(f) Foley & Lardner, counsel for the Company, shall have furnished to you
their written opinion (other than as to subparagraphs (vii) and (viii) insofar
as such subparagraphs relate to insurance law matters) and the General Counsel
or Associate General Counsel of the Company, shall have furnished to you his
written opinion (as to subparagraphs (vii) and (viii) insofar as such
subparagraphs relate to insurance law matters), each dated the Closing Date, in
form and substance reasonably satisfactory to you, to the effect that:
(i) The Company is validly existing as a corporation under the
laws of the State of Wisconsin, with corporate power and authority to own
its properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the transaction
of business and is in good standing (or the local equivalent) under the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where
the failure to so qualify or to be in good standing would not result in a
Material Adverse Effect.
(ii) Each Subsidiary of the Company is validly existing as a
corporation or limited liability company under the laws of the
jurisdiction of incorporation or organization, with corporate power and
authority to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign corporation or
limited liability company for the transaction of business and is in good
standing (or the local equivalent) under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except where the failure to
so qualify or to be in good standing would not result in a Material
Adverse Effect.
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(iii) All the outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued and are fully
paid and non-assessable (except, in the case of Subsidiaries that are
Wisconsin corporations, for certain statutory liabilities that may be
imposed by Section 180.0622(2)(b) of the WBCL for unpaid employee wages),
and, except as otherwise set forth in the Prospectus, all outstanding
shares of capital stock of the Subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and clear of
any perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interest, claim, lien or
encumbrance.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Securities have been duly authorized by the Company and,
assuming that the Securities have been duly authenticated by the Trustee
in the manner described in its certificate delivered to you today and
payment of the consideration for the Securities as specified in the
Underwriting Agreement has been made, the Securities have been duly
executed, issued and delivered by the Company and will constitute valid
and binding obligations of the Company, enforceable against the Company
in accordance with their terms and the terms of the Indenture, except (A)
as the enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, (B) as enforcement
thereof is subject to general equity principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing; and holders of the Securities will be entitled to the
benefits provided by the Indenture.
(vi) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution
and delivery thereof by the Trustee, constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except (A) as the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, (B) as enforcement thereof is subject to general equity
principles (whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing; and the Indenture has
been duly qualified under the Trust Indenture Act.
(vii) The issue and sale of the Securities and the performance by
the Company of its obligations under the Securities, the Indenture and
this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, any
Agreements and Instruments known to such counsel to which the Company or
any of its subsidiaries is a party or by which the Company or any such
subsidiary is bound or to which any of the assets, properties or
operations of the Company or any such subsidiary is subject, other than
in each case such breaches or defaults which, individually or in the
aggregate, would not result in a Material Adverse Effect, nor will
-11-
such action result in any violation of the provisions of the charter or
bylaws of the Company or any of its Subsidiaries or any applicable law or
statute or any order, rule, regulation or judgment known to such counsel
of any court or governmental agency or body having jurisdiction over the
Company or any such subsidiary or any of their assets, properties or
operations.
(viii) No consent, approval, authorization, order, registration or
qualification of or filing with any court or governmental agency or body
is required for the issue and sale of the Securities or the consummation
of the other transactions contemplated by the Prospectus, this Agreement
or the Indenture, except such as have been already made, obtained or
rendered, as applicable, and such as may be required under state
securities laws.
(ix) The statements in (A) the Prospectus under "Description of
Debt Securities" and "Description of Notes", (B) the Registration
Statement in Item 15 and (C) the second and third paragraphs of note 13
of the notes to the Company's consolidated financial statements filed
with the Company's Current Report on Form 8-K, dated March 13, 2002,
insofar as such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present in all
material respects the matters, documents or proceedings summarized
therein; and the Securities and the Indenture conform as to legal matters
in all material respects to the descriptions thereof in the Prospectus.
(x) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property, of a
character required to be disclosed in the Registration Statement which is
not adequately disclosed in the Prospectus, and, to the knowledge of such
counsel, there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or
to be filed as an exhibit thereto, which is not described or filed as
required.
(xi) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act.
(xii) The Registration Statement has become effective under the
Securities Act; any required filing of the Prospectus or any preliminary
prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have been
instituted or threatened.
(xiii) Each document incorporated by reference in the Registration
Statement and the Prospectus (except for the financial statements and
schedules and other financial data included therein, as to which such
counsel need express no opinion) complied as to form when filed with the
Commission in all material respects with requirements of the Exchange Act
and the Registration
-12-
Statement and the Prospectus and each amendment or supplement thereto (except
for the financial statements and schedules and other financial data included
therein, as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Securities Act and the Trust
Indenture Act.
Nothing has come to such counsel's attention that would lead such counsel
to believe that (except for the financial statements and schedules and other
financial data included therein, as to which such counsel need express no
belief) (A) the Registration Statement, when such Registration Statement became
effective or on the Closing 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 or (B) the Prospectus,
as of its date and on the Closing Date, included or includes an untrue statement
of a material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinions, such counsel may: (A) rely as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company given in their corporate capacity (it is understood that
such counsel shall be entitled to rely on certificates of such officers and
those of Subsidiaries with respect to the foreign qualification matters referred
to in subparagraph (ii) above) and certificates or other written statements of
officials of jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company and (B) limit such opinions to the
laws of the States of Delaware and Wisconsin and the Federal laws of the United
States of America and assume that the laws of the State of New York are
identical in all relevant aspects to the substantive laws of the State of
Wisconsin. With respect to the matters to be covered in the preceding paragraph,
counsel may state his belief is based upon his participation in the preparation
of the Registration Statement, Prospectus and any amendment or supplement
thereto but is without independent check or verification except as specified.
(g) On the date hereof and on the Closing Date, PricewaterhouseCoopers
LLP shall have furnished to you a letter, dated such date, in form and substance
reasonably satisfactory to you, containing statements and information of the
type customarily 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.
(h) You shall have received on and as of the Closing Date an opinion of
Mayer, Brown, Rowe & Maw, counsel to the Underwriters, with respect to the
validity of the Indenture and the Securities, the effectiveness of the
Registration Statement, the disclosure in the Registration Statement and the
Prospectus and such other matters as the Representatives may reasonably request,
and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
-13-
(i) On or prior to the Closing Date, the Company shall have furnished to
the Representatives such further certificates and documents as the
Representatives shall reasonably request.
7. (a) 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 Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted in respect
thereof), as incurred, to which such Underwriter or controlling person may be
subject, insofar as such losses, claims, damages or liabilities arise out of or
are based upon:
(i) any untrue statement or alleged untrue statement of a material fact
contained or included in the Registration Statement or any amendment thereof,
the Prospectus, the Prospectus as amended or supplemented or any amendment or
supplement thereto, or any preliminary prospectus; or
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein or, in the case of the Registration Statement or
any amendment thereof, the Prospectus or the Prospectus as amended or
supplemented or any amendment or supplement thereto, necessary to make the
statements therein not misleading or, in the case of any preliminary prospectus,
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
provided, however, that the Company shall not be liable insofar as such
losses, claims, damages or liabilities arise out of or are based upon an untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus or in the Registration Statement or any amendment
thereof, the Prospectus, the Prospectus as amended or supplemented or any such
amendment or supplement thereto in reliance upon and in conformity with
information furnished to the Company in writing by such Underwriter through the
Representatives expressly for inclusion therein; and provided, further, that the
Company shall not be liable to any Underwriter or any person controlling such
Underwriter under the indemnity agreement provided for in this paragraph (a)
with respect to a preliminary prospectus to the extent that any such loss,
claim, damage or liability of such Underwriter or controlling person results
solely from the fact that such Underwriter sold Securities to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus (excluding documents incorporated by reference)
or of the Prospectus as then amended or supplemented (excluding documents
incorporated by reference), whichever is most recent, if (A) the Company has
previously furnished copies thereof to such Underwriter and (B) the applicable
untrue or alleged untrue statement or omission was corrected therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if
-14-
any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, the reasonable
legal fees and other expenses reasonably incurred in connection with any suit,
action or proceeding or any claim asserted in respect thereof), as incurred, to
which the Company may become subject, insofar as such losses, claims, damages or
liabilities arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a material fact
contained or included in the Registration Statement or any amendment thereof,
the Prospectus, the Prospectus as amended or supplemented or any amendment or
supplement thereto, or any preliminary prospectus; or
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein or, in the case of the Registration Statement or
any amendment thereof, the Prospectus or the Prospectus as amended or
supplemented or any amendment or supplement thereto, necessary to make the
statements therein not misleading or, in the case of any preliminary prospectus,
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
in each case to the extent, but only to the extent, that such untrue statement
or omission or alleged untrue statement or alleged omission was made in any
preliminary prospectus or in the Registration Statement or any amendment
thereof, the Prospectus or the Prospectus as amended or supplemented or any
amendment or supplement thereto in reliance upon and in conformance with
information furnished to the Company in writing by or on behalf of such
Underwriter expressly for use therein.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought (the "Indemnified
Person") pursuant to either of subsections (a) or (b) above, such Indemnified
Person shall promptly notify the person against whom such indemnity may be
sought (the "Indemnifying Person") in writing (in such detail as may be
available to such Indemnified Person). In no case shall an Indemnifying Person
be liable under this Section 7 with respect to any claim made against an
Indemnified Person unless such Indemnifying Person shall be notified in writing
of the nature of the claim within a reasonable time after the Indemnified Party
is aware of such claim thereof, but failure so to notify such Indemnifying
Person shall not relieve it from any liability that it may have otherwise than
on account of this Section 7. Upon such notice, the Indemnifying Person shall be
entitled to participate in, and, to the extent that it shall wish, jointly with
any other Indemnifying Person similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such Indemnified Person, and after
notice from the Indemnifying Person to such Indemnified Person of its election
so to assume the defense thereof, the Indemnifying Person shall not be liable to
such Indemnified Person for any legal or other expenses subsequently incurred by
such Indemnified Person in connection with the defense thereof other than
reasonable costs of investigation or as provided in subsection (d) below. Each
Indemnified Person shall assist the Indemnifying Person in any defense
undertaken pursuant to this
-15-
Section 7 by providing such assistance and cooperation (including, without
limitation, witness and documentary or other information) as may be reasonably
requested by the Indemnifying Person in connection with such defense, provided
that all reasonable costs and expenses of such assistance and cooperation shall
be borne by the Indemnifying Person.
(d) Notwithstanding anything herein contained, any Indemnified Person
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 Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in the applicable suit, action, proceeding, claim or demand
(including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
defenses available to them. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding 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 Indemnified Persons, and that all
such fees and expenses, to the extent they are reasonable, shall be reimbursed
as they are incurred. Any such separate firm for the Underwriters and such
control persons of the Underwriters shall be designated in writing by the first
of the named Representatives on Schedule I hereto and any such separate firm for
the Company, its directors, its officers who sign the Registration Statement and
such control persons of the Company or authorized representatives shall be
designated in writing by the Company. In either case, the separate firm so
selected shall be reasonably satisfactory to the Indemnifying Person. The
Indemnifying Person 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 Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened claim, action, suit or proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless the Indemnifying Person has
first given the Indemnified Person reasonable prior written notice of such
proposed settlement and consulted in good faith with the Indemnified Person as
to the inclusion therein of an unconditional release of the Indemnified Person
from all liability arising out of such claim, action, suit or proceeding; and in
the event that an Indemnified Person is an actual party to such claim, action,
suit or proceeding, the Indemnifying Party shall not, without the prior written
consent of the Indemnified Person, settle or compromise or consent to the entry
of any judgment therein unless the same includes an unconditional release of
such Indemnified Person from all liability arising out of or otherwise relating
to the subject matter of such claim, action, suit or proceeding.
(e) If the indemnification provided for in subsections (a) or (b) above
is legally unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such subsection, in lieu of indemnifying such Indemnified
-16-
Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person 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 hand
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 the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations.
(f) The relative benefits received by the Company on the one hand and the
Underwriters on the other hand shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Securities (before
deducting expenses) received by the Company and the total underwriting discounts
and the 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 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. With respect to any Underwriter, such
relative fault shall also be determined by reference to the extent (if any) to
which such losses, claims, damages or liabilities (or actions in respect
thereof) with respect to any preliminary prospectus result from the fact that
such Underwriter sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) or of the Prospectus
as then amended or supplemented (excluding documents incorporated by reference)
if the Company has previously furnished copies thereof to such Underwriter.
(g) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 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 the
equitable considerations referred to in subsection (f) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in subsection (f) above shall be deemed to include,
subject to the limitations set forth above, any reasonable legal or other
expenses incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total price at which the Securities
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 statement 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' obligations to contribute
pursuant to this Section 7 are several in proportion to the
-17-
respective principal amounts of the Securities set forth opposite their names in
Schedule II hereto, and not joint.
(h) The indemnity and contribution agreements contained in this Section 7
are in addition to any liability that the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
(i) The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth 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 other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if, from and including the date of this Agreement to and including
the Closing Date, (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, the New York Stock Exchange or the
National Association of Securities Dealers, Inc., (ii) trading of any securities
of, or guaranteed by, the Company shall have been suspended on any stock
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 a material disruption shall have
occurred in securities settlement, payment or clearance services in the United
States, or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in the judgment of the Representatives, is material and adverse and which, in
the good faith judgment of the Representatives, makes it impracticable to market
the Securities on the terms and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities that it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
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, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives 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 Securities that any Underwriter has agreed to
purchase pursuant to Section I be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such principal amount of Securities without the
written consent of such Underwriter.
-18-
If, on the Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Securities and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Securities to be purchased, and arrangements
satisfactory to you 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 Underwriters or the
Company. In any such case, either you 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.
10. 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 in
all material respects with the terms or to fulfill in all material respects any
of the conditions of this Agreement, the Company agrees to reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all documented out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering of Securities.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by you jointly
or by the first of the named Representatives set forth in Schedule I hereto
alone on behalf of the Underwriters, and any such action taken by you jointly or
by the first of the named Representatives set forth in Schedule I hereto alone
shall be binding upon the Underwriters. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given at the address set forth in Schedule I hereto.
Notices to the Company shall be given to it at MGIC Plaza, 250 East Kilbourn
Avenue, Milwaukee, Wisconsin 53202 Attention: Treasurer, with a copy to the same
address, Attention: General Counsel.
-19-
13. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
MGIC INVESTMENT CORPORATION
By: /s/ James A. Karpowicz
-----------------------------
Name: James A. Karpowicz
Title: Vice President and
Treasurer
Accepted:
BANC OF AMERICA SECURITIES LLC
BNP PARIBAS SECURITIES CORP.
DEUTSCHE BANC ALEX. BROWN INC.
FLEET SECURITIES, INC.
By: BANC OF AMERICA SECURITIES LLC
By: /s/
-------------------------------------
Name:
Title:
Acting severally on behalf of themselves
and the several Underwriters named herein.
-20-
SCHEDULE I
The Securities
Representatives: Banc of America Securities LLC
BNP Paribas Securities Corp.
Deutsche Banc Alex. Brown Inc.
Fleet Securities, Inc.
Title of Securities: 6% Senior Notes due 2007
Aggregate principal amount: $200,000,000
Maturity: March 15, 2007
Interest Rate: 6% per annum
Interest Payment Dates: March and September 15, commencing
September 15, 2002
Optional Redemption/
Repayment Provisions: Market make-whole at T+.25%, as
described in the Prospectus
Sinking Fund Provisions: None
Price to Public: 99.996%
Price to Underwriters: 99.396%
Form: Book-entry only form through the
facilities of The Depository Trust
Company
-21-
Other Provisions: Not applicable
Closing Date and Location: March 18, 2002
9:00 a.m., Central Time
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Address for Notices to
Underwriters: Banc of America Securities LLC
Bank of America Corporate Center
NC1-007-07-01
100 North Tryon Street
Charlotte, NC 28255
-22-
SCHEDULE II
Principal Amount
Underwriter of Securities
Banc of America Securities LLC $120,000,000
BNP Paribas Securities Corp. 40,000,000
Deutsche Banc Alex. Brown Inc. 20,000,000
Fleet Securities, Inc. 20,000,000
Total: $200,000,000
-23-
MGIC INVESTMENT CORPORATION
OFFICER'S CERTIFICATE
Dated as of March 13, 2002
----------------------
Setting Forth Terms of a Series of Debt Securities
6% Senior Notes Due 2007
----------------------
Pursuant to the Indenture
Dated as of October 15, 2000
OFFICER'S CERTIFICATE
The undersigned, the Senior Vice President, Controller and Chief
Accounting Officer and the Vice President and Treasurer of MGIC Investment
Corporation, a Wisconsin corporation (the "Company"), hereby certify as provided
below pursuant to Section 3.1 of the Indenture, dated as of October 15, 2000
(the "Indenture"), between the Company and Bank One Trust Company, National
Association (the "Trustee"). This Officer's Certificate is delivered, pursuant
to authority granted to the undersigned by resolutions adopted June 21, 2000 by
the Board of Directors of the Company, for the purpose of creating and setting
forth the terms of a series of Securities to be issued pursuant to the
Indenture. Capitalized terms not otherwise defined herein are used as defined in
the Indenture.
1. The Board of Directors of the Company has authorized the creation by
the Company of one or more series of Securities under the Indenture through one
or more Officer's Certificates and pursuant to such authorization and in
accordance with the Indenture this Officer's Certificate is being delivered to
the Trustee to establish the terms of a series of Securities as set forth
therein.
2. The title of the Securities shall be "6% Senior Notes due 2007"
(herein called the "Notes").
3. The aggregate principal amount of Notes which may be authenticated and
delivered under the Indenture is limited to U.S. $200,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes as provided in Sections 3.4, 3.5, 3.6, 9.5, or
11.7 of the Indenture, upon repayment in part of any Registered Security of such
series pursuant to Article 13 of the Indenture, upon surrender in part of any
Registered Security for conversion into other securities of the Company or
exchange for securities of another issuer pursuant to its terms, or pursuant to
or as contemplated by the terms of such Notes. Notwithstanding the foregoing
limitation on aggregate principal amount of the Notes, the Notes may be reopened
for issuances of additional Notes in accordance with Section 3.1 of the
Indenture.
4. The Notes shall be issuable as Registered Securities and shall not be
exchangeable for Bearer Securities.
5. Subject to earlier redemption, the principal of the Notes shall be
payable in U.S. dollars on March 15, 2007.
6. The Notes shall bear interest at the rate of 6% per annum; such
interest shall accrue from March 18, 2002 (or from the most recent interest
payment date to which interest on the Notes has been paid or provided for); the
interest payment dates on which such interest shall be payable shall be March 15
and September 15 in each year, commencing September 15, 2002; the Regular Record
Dates for the determination of Holders to whom interest is payable shall be the
March 1 or September 1 next preceding each Interest Payment Date. Interest on
the Notes shall be payable in U.S. dollars.
-2-
7. Pursuant to the Indenture, the Trustee has been appointed as the
Security Registrar for the Notes. The Trustee is hereby further appointed as the
initial Paying Agent and transfer agent of the Notes. The principal of and
interest on the Notes shall be payable at the office of the Paying Agent, which
shall initially be located in the Borough of Manhattan, The City of New York.
8. The Notes shall be redeemable at any time in whole or from time to
time in part at a Redemption Price equal to the sum of 100% of the principal
amount of the Notes being redeemed, accrued interest thereon to the Redemption
Date, and the Make-Whole Amount, if any, with respect to such Notes; provided,
however, that installments of interest on Notes due on an Interest Payment Date
which occurs on or before any Redemption Date shall be payable to the Holders of
such Notes who were registered Holders as of the close of business on the Record
Date immediately preceding such Interest Payment Date.
9. The terms defined below shall, for all purposes of the Notes under the
Indenture and this Officer's Certificate, have the meanings specified, unless
the context clearly otherwise requires or unless otherwise indicated:
"Make-Whole Amount" means, in connection with any optional redemption,
the excess, if any, of (i) the aggregate present value as of the date of such
redemption of each dollar of principal being redeemed and the amount of
interest, exclusive of interest accrued to the Redemption Date, that would have
been payable in respect of each such dollar if such redemption had not been
made, determined by discounting, on a semi-annual basis, such principal and
interest at the Reinvestment Rate, as determined on the third Business Day
preceding the date such notice of redemption is given, from the respective dates
on which such principal and interest would have been payable if such redemption
had not been made, to the date of redemption, over (ii) the aggregate principal
amount of the Notes being redeemed. The Make-Whole Amount shall be calculated by
the Company and set forth in a certificate of an Authorized Officer delivered to
the Trustee, and the Trustee shall be entitled to rely on said certificate.
"Reinvestment Rate" means .250% plus the arithmetic mean of the yields
under the heading "Week Ending" published in the most recent Statistical Release
under the caption "Treasury Constant Maturities" for the maturity, rounded to
the nearest month, corresponding to the remaining life to maturity, as of the
payment date of the principal amount of the Notes being redeemed. If no maturity
exactly corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding in each of
such relevant periods to the nearest month. For the purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used. If the format or
content of the Statistical Release changes in a manner that precludes
determination of the Treasury yield in the above manner, then the Treasury yield
shall be determined in the manner that most closely approximates the above
manner, as reasonably determined by the Company.
-3-
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which reports yields on actively traded United States
government securities adjusted to constant maturities, or, if such statistical
release is not published at the time of any required determination under the
Indenture, then such other reasonably comparable index which shall be designated
by the Company.
10. The Notes shall not be subject to any sinking fund and shall not be
repurchasable at the option of a Holder.
11. The Notes shall not be convertible into other securities of the
Company or exchangeable for securities of another issuer.
12. Defeasance and covenant defeasance under Section 4.2(2) and Section
4.2(3) of the Indenture shall be applicable to the Notes.
13. The Notes shall not be issuable upon the exercise of warrants.
14. The Notes shall initially be issued in whole in the form of one or
more permanent global Securities. The Depository Trust Company, a clearing
agency registered under the Securities Exchange Act of 1934, as amended ("DTC"),
shall initially serve as the depositary for such global Security or Securities.
For so long as DTC shall be the depositary, all Notes shall be registered in its
name or in the name of a nominee thereof. While the Notes are evidenced by one
or more global Securities, the depositary or its nominee, as the case may be,
shall be the sole Holder thereof for all purposes under the Indenture. Neither
the Company nor the Trustee shall have any responsibility or the obligation to
the depositary's participants or the beneficial owners for whom they act with
respect to their receipt from the depositary of payments on the Notes or notices
given under the Indenture. The global Security or Securities provided for
hereunder shall bear such legend or legends as may be required from time to time
by the depositary.
15. Except as hereinafter described, Notes in definitive form will not be
issued. Notwithstanding the foregoing, in the event the Company decides to
discontinue the use of global Securities, any Event of Default has occurred and
is continuing or if DTC is at any time unwilling, unable or ineligible to
continue as depositary and a successor depositary is not appointed by the
Company within 90 days, the Company will issue individual Notes in certificated
form to owners of "book-entry" ownership interests in exchange for the Notes
held by DTC or its nominee, as the case may be. In such instance, an owner of a
"book-entry" ownership interest will be entitled to physical delivery of
certificates equal in principal amount to such "book-entry" ownership interest
and to have such certificates registered in its name. Individual certificates so
issued will be issued in denominations of $1,000 or any multiple thereof.
16. Additional terms regarding the Notes are as set forth in the form of
the Notes set forth below.
17. The form of the Notes shall be substantially as follows:
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[Form of 6% Note due 2007]
No. R-__________ $____________
MGIC INVESTMENT CORPORATION
6% Note due 2007
CUSIP No.: 552845 AF 6
MGIC INVESTMENT CORPORATION
promises to pay to
-------------------------------------------------------------
or registered assigns
the principal sum of Dollars on March 15, 2007
----------------------------------
Interest Payment Dates: March 15 and September 15
Regular Record Dates: March 1 and September 1
Dated:
TRUSTEE'S CERTIFICATE OF MGIC INVESTMENT CORPORATION
AUTHENTICATION
This is one of the Securities
of the series designated By:
therein referred to in the -------------------------------
within-mentioned Indenture Authorized Officer
BANK ONE TRUST COMPANY, (CORPORATE SEAL)
NATIONAL ASSOCIATION, as Trustee
By:
-------------------------------- -------------------------------
Authorized Officer Authorized Officer
-5-
MGIC INVESTMENT CORPORATION
6% Note due 2007
Interest. MGIC Investment Corporation, a Wisconsin corporation (the
"Company"), promises to pay interest on the principal amount of this Security
(as defined herein) at the rate per annum shown above. The Company shall pay
interest semiannually on March 15 and September 15 of each year commencing
September 15, 2002. Interest on the Securities shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
March 18, 2002. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
Method of Payment. The Company shall pay interest on the Securities to
the persons who are registered holders of Securities at the close of business on
the Record Date for the next Interest Payment Date, except as otherwise provided
in the Indenture. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company shall pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. The Company may pay principal and interest by check payable
in such money. The Company may mail an interest check to a Holder's registered
address.
Securities Agents. Initially, Bank One Trust Company, National
Association, shall act as Paying Agent, transfer agent and Security Registrar.
The Company may change any Paying Agent, transfer agent or Security Registrar
without notice. The Company or any Affiliate of the Company may act in any such
capacity. Subject to certain conditions, the Company may change the Trustee.
Indenture. The Company issued the securities of this series (individually
a "Security" and collectively the "Securities") under an Indenture, dated as of
October 15, 2000 (the "Indenture"), between the Company and Bank One Trust
Company, National Association (the "Trustee"), as supplemented by the Officer's
Certificate, dated as of March 13, 2002 (the "Officer's Certificate"). The terms
of the Securities include those stated in the Indenture and in the Officer's
Certificate establishing the Securities and those made part of the Indenture by
the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb). Holders
are referred to the Indenture, the above-referenced Officer's Certificate and
such act for a statement of such terms. All capitalized terms used but not
defined herein have the respective meanings ascribed thereto in the Indenture.
Maturity. The principal on the Securities shall be payable on March 15,
2007.
Redemption Prior to Maturity. The Securities shall be redeemable at any
time in whole or from time to time in part at a Redemption Price equal to the
sum of 100% of the principal amount of the Securities being redeemed, accrued
interest thereon to the Redemption Date, and the Make-Whole Amount, if any, with
respect to such Securities; provided, however, that installments of interest on
Securities due on an Interest Payment Date which occurs on or before any
Redemption Date shall be payable to the Holders of such Securities who were
registered Holders as of the close of business on the Record Date immediately
preceding such Interest Payment Date. The Company shall give notice of any
redemption of
-6-
any Securities to Holders of the Securities to be redeemed at the addresses of
such Holders, as shown in the Security Register, not more than 60 nor less than
30 days prior to the Redemption Date. The notice of redemption will specify,
among other items, the Redemption Price and the aggregate principal amount of
the Securities to be redeemed. If less than all of the Outstanding Securities
are to be redeemed, then the Trustee shall select the Securities to be redeemed
in principal amounts of $1,000 or integral multiples of $1,000 by lot, pro rata
or by another method the Trustee considers fair and appropriate. The Indenture
contains additional provisions with respect to any redemption of the Securities.
Denominations, Transfer, Exchange. The Securities are in registered form
without coupons in denominations of $1,000 and whole multiples of $1,000. The
transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. The transfer agent may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or the Indenture.
Persons Deemed Owners. The registered holder of a Security may be treated
as its owner for all purposes.
Amendments and Waivers. Subject to certain exceptions, the Indenture or
the Securities may be amended with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all series affected
by the amendment. Subject to certain exceptions, a default on a series may be
waived with the consent of the Holders of not less than a majority in principal
amount of the series.
Without the consent of any Holder, the Indenture or the Securities may be
amended to, among other things, cure any ambiguity or correct any omission,
defect or inconsistency; to provide for assumption of Company obligations to
Holders; or to make any change that does not materially adversely affect the
interests of any Holders of Securities then Outstanding.
Limitations on Debt. The Securities are unsecured general obligations of
the Company limited to $200,000,000 principal amount; provided, however, that
the Securities may be reopened for issuances of additional Securities in
accordance with the Indenture. The Indenture does not limit other unsecured
debt.
Successors. When a successor assumes all the obligations of the Company
under the Securities and the Indenture, the Company shall be released from those
obligations.
Defeasance Prior to Maturity. Subject to certain conditions, the Company
at any time may terminate some or all of its obligations under the Securities
and the Indenture if the Company deposits with the Trustee U.S. dollars or U.S.
Government Obligations for the payment of principal of and interest on the
Securities to maturity.
Defaults and Remedies. An Event of Default includes: default for 30 days
in payment of interest on the Securities; default in payment of principal on the
Securities; default by the Company in the performance of any of its other
agreements applicable to the Securities
-7-
that continues for 60 days after the Company has been given notice of such
default; a failure to pay when due at maturity or a default that results in the
acceleration of maturity of any other debt of the Company or certain
subsidiaries in an aggregate amount of $40 million or more; and certain events
of bankruptcy or insolvency. If an Event of Default occurs and is continuing,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately.
Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in principal amount of the Securities may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders notice of any continuing default (except a default in
payment of principal or interest) if it in good faith determines that
withholding such notice is in their best interest.
Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with those persons, as
if it were not Trustee.
No Recourse Against Others. Any incorporator, director or officer, as
such, of the Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
Authentication. This Security shall not be valid until authenticated by a
manual signature of the Trustee.
Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entirety), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), U/G/M/A (=Uniform Gifts to Minors Act),
and U/T/M/A (=Uniform Transfers to Minors Act).
The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture and the Officer's Certificate, which contains the
text of this Security. Requests may be made to: Corporate Secretary, MGIC
Investment Corporation, MGIC Plaza, 250 East Kilbourn Avenue, Milwaukee,
Wisconsin 53202.
All terms used in this Security, which are defined in the Indenture,
shall have the meanings assigned to them in the Indenture.
-8-
[Form of Assignment Form]
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to ___________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. no.)
and irrevocably appoint _______________________________as agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
Date: ______________, _____ Your signature: _____________________________
_____________________________
(Sign exactly as your name appears on the face of this Security)
Signature Guaranteed:
_______________________________
* * *
-9-
IN WITNESS WHEREOF, we have set our hands and the corporate seal of the
Company as of the day and year first above written.
MGIC INVESTMENT CORPORATION
By: /s/ J. Michael Lauer
------------------------------------
J. Michael Lauer
Executive Vice President and
Chief Financial Officer
[CORPORATE SEAL] By: /s/ Patrick Sinks
------------------------------------
Patrick Sinks
Senior Vice President, Controller
and Chief Accounting Officer
-10-