Exhibit No. 10(B)
THE PROGRESSIVE CORPORATION
2003 INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
( PERFORMANCE-BASED AWARD)
This Agreement ("Agreement") is made this by and between
("Participant") and The Progressive Corporation (the
"Company").
1. Award of Restricted Stock. The Company hereby grants to
Participant an award (the "Award") of restricted stock (the "Restricted Stock")
consisting of <# of Shares> of the Company's Common Shares, $1 Par Value
("Common Shares"), pursuant and subject to The Progressive Corporation 2003
Incentive Plan (the "Plan").
2. Condition to Participant's Rights under this Agreement. This
Agreement shall not become effective, and Participant shall have no rights with
respect to the Award or the Restricted Stock, unless and until the Participant
has fully executed this Agreement and delivered it to the Company (in the
Company's discretion, such execution and delivery may be accomplished through
electronic means).
3. Restrictions; Vesting. The Restricted Stock shall be subject
to the restrictions and other terms and conditions set forth in the Plan, which
are hereby incorporated herein by reference, and in this Agreement. Subject to
the terms and conditions of the Plan and this Agreement, Participant's rights in
and to the shares of Restricted Stock shall vest on the date .
The shares of Restricted Stock awarded under this Agreement shall vest
in accordance with the foregoing unless, prior thereto, the Award and the
applicable shares of Restricted Stock are forfeited or have become subject to
accelerated vesting under the terms and conditions of the Plan. Until the shares
of Restricted Stock vest, Participant shall not sell, transfer, pledge, assign
or otherwise encumber such shares of Restricted Stock or any interest therein.
4. Expiration of Award. Notwithstanding anything to the contrary
in this Agreement, if Participant's rights in and to the shares of Restricted
Stock granted hereunder have not vested in accordance with Section 3 of this
Agreement on or before , this Award shall expire on that date.
Upon such expiration, the Common Shares issued pursuant to this Agreement shall
automatically be forfeited, and Participant shall have no further rights with
respect thereto.
5. Manner In Which Shares Will Be Held. Subject to the provisions
of this Paragraph 5, stock certificates evidencing the shares of Restricted
Stock awarded under this Agreement shall be registered in the name of
Participant and shall be delivered to and held in custody by the Company, or its
designee, until the restrictions thereon shall have lapsed or any conditions to
the vesting of such Award have been satisfied. Such certificates shall bear an
appropriate legend referring to the terms, conditions and restrictions
applicable to such Award.
In the discretion of the Company, any or all shares of Restricted Stock
awarded to Participant hereunder may be issued in, or after issuance may be
transferred to, book-entry form and held by the Company, or its designee, in
such form. In such event, no stock certificates evidencing such shares will be
held and the applicable restrictions will be noted in the records of the
Company's transfer agent and in the book-entry system.
Participant hereby irrevocably authorizes the Company and the
Compensation Committee of the Board of Directors (the "Committee") to take any
and all appropriate action with respect to the evidence
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of Participant's Restricted Stock, including, without limitation, issuing
certificates for such Restricted Stock, issuing such Restricted Stock in
book-entry form, transferring any previously issued certificates into book-entry
form, transferring any Restricted Stock (whether held in certificate or
book-entry form) into unrestricted form at vesting, or canceling any Restricted
Stock (whether held in certificate or book-entry form) as and when required by
this Agreement or the Plan, or undertaking any other action which may be done
lawfully by the Company or the Committee in the administration of the Plan and
this Agreement. Participant specifically acknowledges and agrees that such
certificates and/or book-entry evidence of Participant's Restricted Stock may be
transferred or cancelled pursuant to this Agreement and the Plan without
requiring that a Stock Power be executed and delivered by the Participant or
requiring any other action on the part of Participant, and Participant
authorizes the Company to undertake each such action without such Stock Powers.
Participant hereby further irrevocably appoints the Secretary of the
Company and any employee of the Company who may be designated by the Secretary,
and each of them, my true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for me and in my name, place and xxxxx, in
any and all capacities, to execute and deliver each and every document
(including, without limitation, any such Stock Powers) which may be necessary or
appropriate in connection with the issuance, transfer, cancellation or other
action taken in connection with the Restricted Stock awarded hereunder pursuant
to this Agreement or the Plan. The rights granted by Participant under this
paragraph shall automatically expire as to shares of Restricted Stock awarded
hereunder upon the transfer of such shares into unrestricted form at vesting or
upon the cancellation of such shares at any time, as applicable, pursuant to
this Agreement and the Plan.
6. Rights of Shareholder. Except as otherwise provided in this
Agreement or the Plan, Participant shall have, with respect to the shares of
Restricted Stock awarded hereunder, all of the rights of a shareholder of the
Company, including the right to vote the shares and the right to receive any
dividends as declared by the Company's Board of Directors.
7. Shares Non-Transferable. No shares of Restricted Stock shall
be transferable by Participant other than by will or by the laws of descent and
distribution. In the event any Award is transferred or assigned pursuant to a
court order, such transfer or assignment shall be without liability to the
Company, and the Company shall have the right to offset against such Award any
expenses (including attorneys' fees) incurred by the Company in connection with
such transfer or assignment.
8. Executive Deferred Compensation Plan. If Participant is
eligible, and has made the appropriate election, to defer the Restricted Stock
awarded hereunder into The Progressive Corporation Executive Deferred
Compensation Plan (the "Deferral Plan"), upon vesting, the shares of Restricted
Stock awarded hereunder shall be considered to be deferred pursuant to the
Deferral Plan, subject to and in accordance with the terms and conditions of the
Deferral Plan and any deferral agreement entered into by Participant thereunder.
9. Termination of Employment. Except as otherwise provided in the
Plan or as determined by the Compensation Committee of the Company's Board of
Directors, if Participant's employment with the Company is terminated for any
reason other than death, Disability or Qualified Retirement, all Restricted
Stock held by Participant which is unvested or subject to restriction at the
time of such termination shall be automatically forfeited.
10. Taxes. No later than the date as of which an amount first
becomes includable in the gross income of Participant for federal income tax
purposes with respect to shares of Restricted Stock awarded under this
Agreement, Participant shall pay to the Company, or make arrangements
satisfactory to the Committee regarding the payment of, all federal, state or
local taxes or other items of any kind required
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by law to be withheld with respect to such amount. The obligations of the
Company under the Plan shall be conditional on such payment or arrangements and
the Company and its Subsidiaries and Affiliates, to the extent permitted by law,
shall have the right to deduct any such taxes from any payment of any kind
otherwise due to Participant. At vesting, shares of Restricted Stock awarded
hereunder will be valued at Fair Market Value, as defined in the Plan.
Participant must satisfy the minimum statutory tax withholding
obligations resulting from the vesting of shares of Restricted Stock ("Minimum
Withholding Obligations") either (a) by surrendering to Company shares of
Restricted Stock which are then vesting in an amount sufficient to satisfy the
Minimum Withholding Obligations, (b) by surrendering to the Company other
unrestricted Common Shares of the Company owned by Participant in an amount
sufficient to satisfy the Minimum Withholding Obligations, or (c) by paying the
appropriate amount in cash or, if acceptable to the Company, by check or other
instrument. Unless Participant advises the Company of his or her election to use
an alternative payment method, Participant shall be deemed to have elected to
surrender to the Company shares of Restricted Stock which are then vesting in an
amount sufficient to satisfy the Minimum Withholding Obligations. If Participant
requests that the Company withhold taxes in addition to the Minimum Withholding
Obligations, such additional withholding must be satisfied by Participant either
(x) by paying the appropriate amount in cash or, if acceptable to the Company,
by check or other instrument, or (y) provided that Participant has obtained the
approval of either the Company or the Committee (as required under rules adopted
by the Committee) prior to the date of vesting, by surrendering unrestricted
Common Shares which are not part of the Restricted Stock then vesting and which
have then been owned by the Participant in unrestricted form more than six (6)
months.
Under no circumstances will Participant be entitled to satisfy any such
additional withholding by surrendering shares of Restricted Stock which are then
vesting or other Common Shares which have then been owned by Participant in
unrestricted form for six months or less. In addition, under no circumstances
will Participant be entitled to satisfy any Minimum Withholding Obligations or
additional withholding hereunder by surrendering shares of Restricted Stock
which are not then vesting or any Restricted Stock which Participant has elected
to defer under Paragraph 8 hereof. All payments, surrenders of shares, elections
or requests for approval hereunder must be made by Participant in accordance
with such procedures as may be adopted by the Company in connection therewith,
and subject to such rules as have been or may hereafter be adopted by the
Committee with respect thereto.
11. Dividends. Participant acknowledges and agrees that the
Company will pay, or cause to be paid, any cash dividends payable in respect of
Restricted Stock through such method(s) of payment as the Company deems
advisable, on or promptly after the date established by the Board of Directors
for the payment of such cash dividend to holders of the Company's Common Shares
(the "Dividend Payment Date"), including, but not limited to: (i) payment by the
Company's transfer agent through the procedures established generally for
shareholders of record; or (ii) payment by the Company to Participants directly
either through the Company's payroll system in the first payroll check which is
issued to the Participant after the Dividend Payment Date or by appropriate
check, draft or automatic deposit.
12. Entire Agreement: This Agreement constitutes the entire
agreement between the parties and supersedes and cancels any other agreement,
representation or communication, whether oral or in writing, between the parties
hereto relating to subject matter hereof, provided that the Agreement shall be
at all times subject to the Plan as provided above.
13. Amendment. The Committee, in its sole discretion, may
hereafter amend the terms of this Award, but no such amendment shall be made
which would impair the rights of Participant, without Participant's consent.
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14. Definitions: Unless otherwise defined in this Agreement, each
capitalized term in this Agreement shall have the meaning given to it in the
Plan.
Participant hereby: (i) acknowledges receiving a copy of the Plan
Description relating to the Plan, and represents that he or she is familiar with
all of the material provisions of the Plan, as set forth in such Plan
Description; (ii) accepts this Agreement and the Restricted Stock awarded
pursuant hereto subject to all provisions of the Plan and this Agreement; and
(iii) agrees to accept as binding, conclusive and final all decisions and
interpretations of the Committee relating to the Plan, this Agreement or the
Restricted Stock awarded hereunder.
Participant evidences his or her agreement with the terms and
conditions of this Agreement, and his or her intention to be bound hereby, by
electronically accepting the Award granted hereunder pursuant to the procedures
adopted by the Company. UPON SUCH ACCEPTANCE BY PARTICIPANT, THIS AGREEMENT WILL
BE IMMEDIATELY BINDING AND ENFORCEABLE AGAINST PARTICIPANT AND THE COMPANY.
THE PROGRESSIVE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Vice President & Secretary
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