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EXHIBIT NO. 1
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Proposed Form of Underwriting Agreement
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UNDERWRITING AGREEMENT
___________ __, 199_
The Progressive Corporation
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxx 00000
Ladies and Gentlemen:
___________________ as underwriter (hereinafter referred to as the
"Manager" or the "Underwriter") understands that The Progressive Corporation,
an Ohio corporation (the "Company"), proposes to issue and sell $___________
aggregate principal amount of its [Interest Rate]% [Type of Debt Security] due
[Maturity Date] (the "Offered Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell and the Underwriter agrees to
purchase a total of $___________ principal amount of the Offered Securities at
a purchase price equal to ______% of the principal amount of the Offered
Securities plus accrued interest on the Offered Securities from __________ __,
____ to the date of payment and delivery. The Offered Securities will be
offered to the public at ______% of the principal amount, the underwriting
discount will be ____%, the selling concession to dealers will be ___% and the
reallowance concession will be ___%.
The Underwriter will pay for such Offered Securities upon delivery thereof
at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 at 10:00 A.M. (New York time) on _______ __, ____, or at such other
time, not later than _______ __, ____, as shall be designated by the
Underwriter with the consent of the Company, which consent shall not
unreasonably be withheld. Payment for the Offered Securities shall be made in
U.S. dollars in immediately available funds.
The Offered Securities shall have the following terms:
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Maturity: _______ __, ____
Interest Rate: _____
Interest Payment Date: __________ and __________
Redemption Provisions,
if any:
Trustee: State Street Bank and
Trust Company
Except as otherwise set forth herein, all the provisions contained in the
document entitled "The Progressive Corporation Underwriting Agreement Standard
Provisions (Debt)" dated March 1998, a copy of which you have previously
received, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein.
Please confirm your agreement by having an authorized officer sign a copy of
this Agreement in the space set forth below and returning the signed copy to us
and, in addition, have an authorized officer send us no later than 11:00 A.M.
[business day following date] by wire, telex or other written means, the
following message:
"We have entered into the Underwriting Agreement dated _______, ____
relating to the Offered Securities referred to therein by signing a copy of the
Underwriting Agreement and returning the same or depositing the same in the
mail to you."
Very truly yours,
[Name of Manager]
By__________________________
Title:
Accepted:
THE PROGRESSIVE CORPORATION
By_________________________
Title:
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THE PROGRESSIVE CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
March 1998
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From time to time, The Progressive Corporation, an Ohio corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in
any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is sometimes herein referred to as "this Agreement." Unless
otherwise defined herein, terms defined in the Underwriting Agreement are used
herein as therein defined.
I.
The Company proposes to issue from time to time debt securities to
be issued pursuant to the provisions of one or more Indentures, including any
amendments or supplements thereto (individually, an "Indenture") between the
Company and a trustee named therein. Such debt securities will have varying
designations, maturities, rates and times of payment of interest, selling
prices, redemption terms and other terms. Any such debt securities are herein
sometimes referred to as the "Securities."
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement including one or more prospectuses
relating to the Securities and has filed with, or mailed for filing to, the
Commission, pursuant to Rule 424 under the Securities Act of 1933, as amended,
a prospectus supplement or supplements specifically relating to the Securities
to be sold ("Offered Securities"). The term "Registration Statement" means the
registration statement as amended to the date of the Underwriting Agreement.
The term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus, together with the
prospectus supplement (other than a preliminary prospectus supplement)
specifically relating to the Offered Securities as filed with, or mailed for
filing to, the Commission pursuant to Rule 424. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating to
the Offered Securities, together with the Basic Prospectus. As used herein,
the terms "Registration Statement," "Basic Prospectus," "Prospectus" and
"preliminary prospectus" shall include in each case the material, if any,
incorporated by reference therein.
The term "Underwriters' Securities" means the Offered Securities
to be purchased by the Underwriters herein. The term "Contract Securities"
means the Offered
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Securities, if any, to be purchased pursuant to the delayed delivery contracts
referred to below.
II.
If the Prospectus provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company hereby authorizes the
Underwriters to solicit offers to purchase Contract Securities on the terms and
subject to the conditions set forth in the Prospectus pursuant to delayed
delivery contracts substantially in the form of Schedule I attached hereto
("Delayed Delivery Contracts") but with such changes therein as the Company may
authorize or approve. Delayed Delivery Contracts are to be with institutional
investors approved by the Company and of the types set forth in the Prospectus.
On the Closing Date (as hereinafter defined), the Company will pay the Manager
as compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the Contract Securities. The Underwriters
will not have any responsibility in respect of the validity or the performance
of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts
with institutional investors, the Offered Securities comprising the Contract
Securities shall be deducted from the Offered Securities comprising the
Underwriters' Securities to be purchased by the several Underwriters and the
aggregate principal amount of Offered Securities to be purchased by each
Underwriter shall be reduced pro rata in the same proportion as the principal
amount of Offered Securities set forth opposite such Underwriter's name in the
Underwriting Agreement bears to the total principal amount of all Offered
Securities in the Underwriting agreement, except to the extent that the Manager
determines that such reduction shall be otherwise and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement is entered into as in the
Manager's judgment is advisable. The terms of the public offering of the
Underwriters' Securities are set forth in the Prospectus.
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IV.
Payment for the Underwriters' Securities shall be made by payment
in full of the requisite amount of funds determined in the Underwriting
Agreement and in accordance with the procedures set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities registered in such names
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of delivery. The time and date of
such payment and delivery with respect to the Underwriters' Securities are
herein referred to as the "Closing Date."
V.
The several obligations of the Underwriters hereunder are subject
to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission and there shall have been no
material adverse change (not in the ordinary course of business) in the
condition of the Company and its subsidiaries, taken as a whole, from that set
forth in the Registration Statement and the Prospectus; and the Manager shall
have received, on the Closing Date, a certificate, dated the Closing Date and
signed by an executive officer of the Company, to the foregoing effect. The
officer making such certificate may rely upon the best of his knowledge as to
the proceedings pending or threatened.
(b) The Manager shall have received on the Closing Date an opinion of
Xxxxx & Xxxxxxxxx LLP, counsel for the Company, dated the Closing Date, as to
the matters set forth in Schedule II attached hereto. In giving their opinion
required by this Section V(b), Xxxxx & Xxxxxxxxx LLP may rely as to all matters
of New York law on the opinion of counsel for the Underwriters.
(c) The Manager shall have received on the Closing Date an opinion of
Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the Closing Date, in
form and substance satisfactory to the Manager.
(d) The Manager shall have received on the date of the Underwriting
Agreement a letter dated such date, and also on the Closing Date a letter dated
the Closing Date, in form and substance satisfactory to the Manager, from
Coopers &
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Xxxxxxx L.L.P., independent public accounts, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
to underwriters with respect to the financial statements and certain financial
information contained or incorporated by reference in the Registration
Statement and the Prospectus.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, a copy of the
Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, and documents
incorporated by reference therein and any supplements and amendments
thereto as the Manager may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement with respect to the
Registration Statement, Prospectus or preliminary prospectus shall include
all documents filed by the Company with the Commission subsequent to the
date of the Basic Prospectus, pursuant to the Securities Exchange Act of
1934, as amended, which are deemed to be incorporated by reference in the
Prospectus.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Offered Securities, to furnish the
Manager a copy of each such proposed amendment or supplement.
(c) If, during such period after the commencement of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered with respect
thereto, any event shall occur as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances then existing, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply with
law, forthwith at its own expense, to amend or to supplement the Prospectus
and to furnish such amendment or supplement to the Underwriters, so as to
correct such statement or omission or effect such compliance.
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(d) To qualify the Offered Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the
Manager may reasonably designate; provided that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now
qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
(e) To make generally available to the Company's security holders
as soon as practicable an earnings statement covering a 12-month period
beginning after the date of the Underwriting Agreement, which shall satisfy
the provisions of Section 11(a) of the Securities Act of 1933, as amended,
and Rule 158 and other applicable rules and regulations of the Commission
thereunder.
VII.
The Company represents and warrants to each Underwriter that (i)
each document filed or to be filed pursuant to the Securities Exchange Act of
1934, as amended, and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with such Act and the
applicable rules and regulations thereunder, (ii) each part of the Registration
Statement (including the documents incorporated by reference therein), filed
with the Commission pursuant to the Securities Act of 1933, as amended,
relating to the Securities, when such part became effective, did not contain
any untrue statement of material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances then existing, not misleading, (iii) each preliminary
prospectus, if any, filed pursuant to Rule 424 under the Securities Act of
1933, as amended, complied when so filed in all material respects with such Act
and the applicable rules and regulations thereunder, (iv) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act of
1933, as amended, and the applicable rules and regulations thereunder and (v)
the Registration Statement and the Prospectus do not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit
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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;
except that the above representations and warranties do not apply to statements
or omissions in the Registration Statement, any preliminary prospectus or the
Prospectus based upon information furnished to the Company in writing by any
Underwriter expressly for use therein. In addition to the representations and
warranties set forth in this Article VII, the Company also makes the
representations and warranties set forth in Schedule III attached hereto.
The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter within the meaning of
either Section 15 of the Securities Act of 1933, as amended, or Section 20 of
the Securities Exchange Act of 1934, as amended, from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any preliminary prospectus or the Prospectus (if used within the
period set forth in paragraph (c) of Article VI hereof and as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except to the extent that such losses, claims, damages
or liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing to the
Company by any Underwriter expressly for use therein; provided, however, that
the foregoing indemnity with respect to preliminary prospectuses or
Prospectuses shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Offered
Securities if such untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus is eliminated or remedied in the
Prospectus or the Prospectus as amended or supplemented (copies of which were
delivered to such Underwriter) and a copy of the Prospectus or the Propsectus
as amended or supplemented (excluding documents incorporated by reference) has
not been furnished to such person at or prior to the written confirmation of
the sale of such Offered Securities to such person.
Each underwriter agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and
any person controlling the
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Company to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information furnished by such
Underwriter in writing expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus.
If any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one proceeding in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated
in writing by the Manager in the case of parties indemnified pursuant to the
immediately preceding paragraph and by the Company in the case of parties
indemnified pursuant to the second preceding paragraph. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent of if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
If the indemnification provided for in this Article VII is
unavailable to an indemnified party under the second or third paragraphs hereof
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of
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indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other in connection
with the offering of the Offered Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of such Offered
Securities (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters in
respect thereof. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relevant intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Article VII were determined by
pro rata allocation or by any method of allocation which does not take account
of the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten and distributed to the
public by such Underwriter were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
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No person guilty of such fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act of 1933, as amended) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to
this Article VII are several, in proportion to the respective principal amounts
of Offered Securities purchased by each of such Underwriter, and not joint.
The indemnity and contribution agreements contained in this
Article VII and the representations and warranties of the Company 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 any
Underwriter or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its directors or officers or any
person controlling the Company, and (iii) acceptance of and payment for any of
the Offered Securities.
VIII.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Company, if prior to the
Closing Date (i) any change in the condition, financial or otherwise, or in the
earnings, business or operations, of the Company and its subsidiaries, taken as
a whole, from that set forth in the Prospectuses, which is material and
adverse; (ii) any downgrading in, or notice of any proposal to downgrade, the
rating of the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Securities Act of 1933, as amended) or any public announcement that any
such organization has under surveillance or review the rating of the Company's
debt securities with negative implications or without indicating the direction
of possible change; (iii) any suspension or limitation of trading in securities
generally on or by the New York Stock Exchange, the American Stock Exchange or
the National Association of Securities Dealers, Inc., or any setting of minimum
prices for trading on such exchange; (iv) any suspension of trading of any
securities of the Company on any exchange; (v) any banking moratorium declared
by Federal or New York authorities; or (vi) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war, if the effect of any such event set forth in
(i) through (vi), in the judgment of the Manager, makes it impractical or
inadvisable to proceed with the public
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offering or the delivery of the Offered Securities on the terms and in the
manner contemplated by the Prospectus.
IX.
If any one or more of the Underwriters shall fail or refuse to
purchase Offered Securities which it or they have agreed to purchase hereunder,
and the aggregate principal amount of Offered 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 Offered
Securities, the other Underwriters shall be obligated severally in the
proportions which the aggregate principal amounts of Offered Securities set
forth opposite their names in the Underwriting Agreement bear to the aggregate
principal amount of Offered Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase; provided
that in no event shall the principal amount of Offered Securities which any
Underwriter has agreed to purchase pursuant to the Underwriting Agreement be
increased pursuant to this paragraph by an amount in excess of one-ninth of
such principal amount of Offered Securities, without the written consent of
such Underwriter. In any such case either the Manager 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. If any Underwriter or Underwriters shall fail or refuse to
purchase Offered Securities and the aggregate principal amount of Offered
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of the Offered Securities and arrangements
satisfactory to the Manager and the Company for the purchase of such Offered
Securities are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or of
the Company. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters or any
of them because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its
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obligations under this Agreement, the Company will reimburse the Underwriters
or such Underwriters as have so terminated this Agreement, with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with the Offered Securities.
This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
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SCHEDULE I
DELAYED DELIVERY CONTRACT
, 19
The Progressive Corporation
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxx 00000
Dear Sirs:
The undersigned hereby agrees to purchase from The Progressive
Corporation, an Ohio corporation (the "Company"), and the Company agrees to
sell to the undersigned $ principal amount of the Company's __%
Notes due _____________, ____ (the "Offered Securities"), offered by the
Company's Prospectus dated , 19__ and Prospectus Supplement dated , 19__,
receipt of copies of which is hereby acknowledged, at a purchase price of %
of the principal amount of such Offered Securities plus accrued interest from
, 19__ to the delivery date or dates thereof [and] [amortization of the
original issue discount from ,19__ to the delivery date or dates
thereof] and on the further terms and conditions set forth in this contract.
The undersigned does not contemplate selling Offered Securities
prior to making payment therefor.
The undersigned will purchase from the Company the principal
amounts of Offered Securities on the delivery dates set forth below:
[Plus Accrued Interest From:
Delivery [and][Amortization of
Date Principal Amount Original Issue Discount From:]
---- ---------------- ------------------------------
________ ___________________ ______________________________
________ ___________________ ______________________________
________ ___________________ ______________________________
Each such date on which Offered Securities are to be purchased
hereunder is hereinafter referred to as a "Delivery Date."
Payment for the Offered Securities which the undersigned has
agreed to purchase on each Delivery Date shall be made in U.S. dollars or the
equivalent thereof in a
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foreign denominated coin or currency or units based on or relating to
currencies (including European Currency Units (ECU)) [by certified or official
bank check or checks payable to the Company or by bank wire transfer] [by bank
wire transfer] in immediately available funds at the office of New York, N.Y.,
at _____ A.M. (New York time) on the Delivery Date, upon delivery to the
undersigned of the Offered Securities to be purchased by the undersigned on the
Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communicated addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for the
Offered Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Offered Securities to be made by the undersigned shall not
at the time of delivery be prohibited under the laws of the jurisdiction to
which the undersigned is subject and (2) the Company shall have sold, and
delivery shall have taken place to the underwriters (the "Underwriters") named
in the Prospectus Supplement referred to above, of such part of the Offered
Securities as is to be sold to them. Promptly after completion of sale and
delivery to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Offered
Securities by any purchaser under any other Delayed Delivery Contract shall not
relieve the undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested
that the Company sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at is address set forth below. This
will become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
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This contract shall be governed by and construed in accordance
with the laws of the State of New York.
Yours very truly,
____________________________
(Purchaser)
By:_________________________
____________________________
(Title)
____________________________
____________________________
(Address)
Accepted:
THE PROGRESSIVE CORPORATION
By:_______________________
Title:
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PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the representatives
of the Purchaser with whom details of delivery on the Delivery Date may be
discussed are as follows: (Please print)
Telephone No.
(Including
Name Area Codes) Department
---- ----------- ----------
________________ __________________ ___________________
________________ __________________ ___________________
________________ __________________ ___________________
________________ __________________ ___________________
________________ __________________ ___________________
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SCHEDULE II
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(i) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Ohio, with all requisite corporate power and authority to own its
properties and conduct its business as described in the
Prospectus;
(ii) the Indenture has been duly authorized, executed and delivered by
the Company and, assuming due execution and delivery thereof by
the Trustee, is a valid and binding agreement of the Company and
has been duly qualified under the Trust Indenture Act of 1939, as
amended;
(iii) the Debt Securities have been duly authorized and executed by the
Company and, assuming due authentication of the Debt Securities by
the Trustee in accordance with the terms of the Indenture, upon
delivery to the Underwriters against payment therefor in
accordance with the terms of the Underwriting Agreement, will be
valid and binding obligations of the Company;
(iv) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(v) the issuance and sale of the Debt Securities as provided in the
Underwriting Agreement, the execution and delivery of the
Underwriting Agreement, the consummation of the transactions
contemplated thereby and compliance with the terms and provisions
thereof will not conflict with or result in a breach of any of the
terms or provisions of the Amended Articles of Incorporation or
the Code of Regulations or of any material agreement or instrument
known to us to which the Company is a party or by which the
Company is bound and will not constitute a default thereunder or
result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the properties or
assets of the Company under any such agreement or instrument;
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(vi) no consent, approval, authorization or other order of or filing
with any regulatory authority or other governmental body in the
United States of America is required for execution and delivery
of the Underwriting Agreement by the Company, except such as have
been obtained and made under the Securities Act of 1933, as
amended (the "Act"), the Trust Indenture Act of 1939 and the
General Corporation Law of Ohio (except for consents, approvals,
authorizations, orders or filings under any securities or "blue
sky" laws or any insurance laws of any state, as to which we do
not express an opinion); and
(vii) (A) the Registration Statement has become effective under the
Act, and, to the best of our knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are
pending or threatened under the Act, (B) the Registration
Statement and the Prospectus, as of their respective effective or
issue dates (except for financial statements and financial data
and related schedules and notes, as to which we do not express an
opinion), appeared on their face to be appropriately responsive in
all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and (C) the
descriptions in the Registration Statement and the Prospectus, as
of their respective effective or issue dates, of statues, legal
and governmental proceedings and contracts and other documents,
insofar as such descriptions constitute a summary of such
statutes, legal and governmental proceedings and contracts and
other documents, fairly presented in all material respects the
information required to be stated under the Act, the Securities
Exchange Act of 1934, as amended, and the respective rules and
regulations of the Commission thereunder, and we do not know of
any legal or governmental proceedings pending or threatened to
which the Company is a party or to which any property of the
Company is subject which are required to be described in the
Prospectus, as of its issue date, which were not described as
required, or of any
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contracts or other documents of a character required to be
described in the Registration Statement or the Prospectus, as of
their respective effective or issue dates, or to be filed as
exhibits to the Registration Statement, as of its effective date,
which were not described and filed as required (the opinion
expressed in this subparagraph being based solely on our review of
the Registration Statement and the Prospectus and discussion of
the same with certain officers of the Company, but without
independent check or verification, except as specified).
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SCHEDULE III
(i) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(ii) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(iii) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure
to be so incorporated or qualified or be in good standing would
not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(iv) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and has been
duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, assuming the due
authorization, execution and delivery by
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24
the Trustee, enforceable in accordance with its terms except as
(i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of
general applicability.
(vi) The Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company, assuming the due authorization,
execution and delivery by the other party, enforceable in
accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium or similar laws affecting creditors' rights generally
and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability.
(vii) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the
case of the Underwriters' Securities, or by institutional
investors in accordance with the terms of the Delayed Delivery
Contracts, if any, in the case of the Contract Securities, will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, in each case enforceable in
accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium or similar laws affecting creditors' rights generally
and (ii) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of
general applicability.
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(viii) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the
Indenture, the Offered Securities, and the Delayed Delivery
Contracts, if any, will not contravene in any material respect any
provision of applicable law or the Articles of Incorporation or
Code of Regulations of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any
subsidiary that is material to the Company and its subsidiaries,
taken as a whole, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations
under this Agreement, the Indenture, the Offered Securities or the
Delayed Delivery Contracts, except such as may be required by the
securities or Blue Sky laws or any insurance laws of the various
states in connection with the offer and sale of the Offered
Securities.
(ix) There has not occurred any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus.
(x) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of
its subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required.
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26
(xi) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined
in the Investment Company Act of 1940, as amended.
(xii) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have
received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(xiii) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba.
(xiv) The ratios and other financial and statistical data contained in
the Registration Statement and the Prospectus have been prepared
in conformity in all material respects with the requirements of
the insurance laws, rules and regulations of any jurisdiction to
which the Company's subsidiaries are subject or generally accepted
accounting principles, as applicable, and present fairly the
information purported to be shown.
(xv) The reserves reflected in the Company's most recent quarterly
or annual report filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended, for payment of all
outstanding benefits, losses, claims and
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expenses under insurance policies and programs issued or provided
by the Company's subsidiaries are adequate, based on generally
accepted actuarial techniques applied on a consistent basis, to
cover in all material respects the total amount of all outstanding
liabilities incurred as of the date of such report under all
such insurance policies and programs under which such subsidiaries
may have any liability as of such date.
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