Exhibit (d)(26)
FIRST AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
THE PROGRESSIVE CORPORATION
THIS FIRST AMENDMENT, dated as of the first day of June, 2004, and
effective as otherwise set forth herein, by and between Fidelity Management
Trust Company (the "Trustee") and The Progressive Corporation ("Company");
WITNESSETH:
WHEREAS, the Trustee and Company heretofore entered into a Trust
Agreement dated November 8, 2002, with regard to The Progressive Corporation
Executive Deferred Compensation Trust (the "Plan"); and
WHEREAS, Company has informed the Trustee that effective close of
business April 22, 2004, the assets of the Janus Worldwide Fund are frozen to
new contributions and exchanges in; and
WHEREAS, Company hereby directs the Trustee, in accordance with Section
8(g), effective close of business May 28, 2004, to liquidate all participant
balances held in the Janus Worldwide Fund at its net asset value on such day,
and to invest the proceeds in the Xxxxxxxxx World Fund - Class A at its net
asset value on such day. The parties hereto agree that the Trustee shall have no
discretionary authority with respect to this sale and transfer directed by
Company. Any variation from the procedure described herein may be instituted
only at the express written direction of Company; and
WHEREAS, the Trustee and Company now desire to amend said Trust
Agreement as provided for in Section 12 thereof;
NOW THEREFORE, in consideration of the above premises, the Trustee and
Company hereby amend the Trust Agreement by:
(1) Adding a new Section 13, Electronic Services, as follows, and
renumbering all subsequent subsections accordingly:
Section 13. Electronic Services.
(a) The Trustee may provide Electronic Services and/or
Electronic Products, including, but not limited to Fidelity
Plan Sponsor WebStation. Company and its agents agree to use
such Electronic Services and Electronic Products only in the
course of reasonable administration of or participation in the
Plan and to keep confidential and not publish, copy,
broadcast, retransmit, reproduce, commercially exploit or
otherwise redisseminate the Electronic Products or Electronic
Services or any portion thereof without the Trustee's written
consent, except, in cases where Trustee has specifically
notified Company that the Electronic Products or Services are
suitable for delivery to Company's Participants, for
non-commercial personal use by Participants or beneficiaries
with respect to their participation in the Plan or for their
other retirement planning purposes.
(b) Company shall be responsible for installing and
maintaining all Electronic Products, (including any
programming required to accomplish the installation) and for
displaying any and all content associated with Electronic
Services on its computer network and/or intranet so that such
content will appear exactly as it appears when
delivered to Company. All Electronic Products and Services
shall be clearly identified as originating from the Trustee or
its affiliate. Company shall promptly remove Electronic
Products or Services from its computer network and/or
intranet, or replace the Electronic Products or Services with
updated products or services provided by the Trustee, upon
written notification (including written notification via
facsimile) by the Trustee.
(c) All Electronic Products shall be provided to Company
without any express or implied legal warranties or acceptance
of legal liability by the Trustee, and all Electronic Services
shall be provided to Company without acceptance of legal
liability related to or arising out of the electronic nature
of the delivery or provision of such Services. Except as
otherwise stated in this Agreement, no rights are conveyed to
any property, intellectual or tangible, associated with the
contents of the Electronic Products or Services and related
material. The Trustee hereby grants to Company a
non-exclusive, non-transferable revocable right and license to
use the Electronic Products and Services in accordance with
the terms and conditions of this Agreement.
(d) To the extent that any Electronic Products or Services
utilize internet services to transport data or communications,
the Trustee will take, and Company agrees to follow,
reasonable security precautions, however, the Trustee
disclaims any liability for interception of any such data or
communications. The Trustee reserves the right not to accept
data or communications transmitted via electronic media by
Company or a third party if it determines that the media does
not provide adequate data security, or if it is not
administratively feasible for the Trustee to use the data
security provided. The Trustee shall not be responsible for,
and makes no warranties regarding access, speed or
availability of internet or network services, or any other
service required for electronic communication. The Trustee
shall not be responsible for any loss or damage related to or
resulting from any changes or modifications to the Electronic
Products or Services after delivering it to Company.
(2) Effective close of business April 22, 2004, amending the
"investment options" section of Schedule "A" to delete the
reference to the "Janus Worldwide Fund" and replace it with
"Janus Worldwide Fund (frozen to new contributions and
exchanges in)."
(3) Effective close of business May 28, 2004, amending the
"investment options" section of Schedule "A" to delete the
following:
o Janus Worldwide Fund (frozen to new contributions and
exchanges in)
(4) Effective close of business May 28, 2004, amending the
"investment options" section of Schedule "A" to add the
following:
x Xxxxxxxxx World Fund - Class A
o American AAdvantage Small Cap Value Fund - Plan Ahead
Class
(5) Restating, in its entirety, the "Non-Fidelity Mutual Funds"
section of Schedule "B" as follows:
Non-Fidelity Mutual Funds: Fees paid directly to Fidelity
Investments Institutional
Operations Company, Inc. (FIIOC) or
its affiliates by Non-Fidelity
Mutual Fund vendors shall be posted
and updated quarterly on
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Plan Sponsor Webstation at
xxxx://xxx.xxxxxxxx.xxx or a
successor site.
(6) Restating, in its entirety, the "Other Fees" section of
Schedule "B" as follows:
Other Fees: separate charges may apply for extraordinary
expenses resulting from large numbers of simultaneous manual
transactions, from errors not caused by Fidelity, reports not
contemplated in this Agreement, corporate actions, or the
provision of communications materials in hard copy which are
also accessible to participants via electronic services in the
event that the provision of such material in hard copy would
result in an additional expense deemed to be material.
IN WITNESS WHEREOF, the Trustee and Company have caused this First
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
THE PROGRESSIVE CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx 6/16/04 By: /s/ Xxxxxxx Xxxx Xxxxxx 7/19/04
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Date FMTC Authorized Signatory Date
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