FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OHIO 34-0963169
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
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COPIES TO:
R. STEVEN KESTNER KEITH L. KEARNEY
BAKER & HOSTETLER DAVIS POLK & WARDWELL
3200 NATIONAL CITY CENTER 450 LEXINGTON AVENUE
CLEVELAND, OHIO 44114 NEW YORK, NEW YORK 10017
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If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / /
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH PROPOSED MAXIMUM AGGREGATE AMOUNT OF
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING PRICE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT (1) (1) FEE
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Debt Securities................. $200,000,000(2) 100% $200,000,000 $68,966
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(1) Estimated solely for the purpose of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
SUBJECT TO COMPLETION, DATED MARCH 15, 1996
PROSPECTUS
THE PROGRESSIVE CORPORATION
The Progressive Corporation (the "Company") may issue and offer from time to time in one or more series up to $200,000,000 in aggregate initial public offering price of its debt securities consisting of debentures, notes or other unsecured evidences of indebtedness (the "Debt Securities"). The Debt Securities will rank on a parity with all other current and future unsecured and unsubordinated indebtedness of the Company and prior to subordinated indebtedness, if any. The Debt Securities may be offered to the public on terms determined by market conditions. The Debt Securities may be sold for U.S. dollars or foreign denominated currency or currency units, and principal of and any interest on the Debt Securities may likewise be payable in U.S. dollars or foreign denominated currency or currency units. The currency or currency units for which the Debt Securities may be purchased and the currency or currency units in which principal of and interest on the Debt Securities will be payable will be specifically designated in one or more supplements to this Prospectus (each a "Prospectus Supplement").
The specific designation, aggregate principal amount, authorized denominations, purchase price, maturity, any premium, any interest rate (which may be fixed or variable) or manner of calculation thereof, any interest payment dates, any optional or mandatory redemption terms, any sinking fund provisions, listing on a securities exchange, and any other specific terms relating to any series of Debt Securities, and the name of each dealer, underwriter or agent, if any, involved in the sale of any series of Debt Securities and any compensation to any such dealer, underwriter or agent, will be set forth in a Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR THE NORTH CAROLINA INSURANCE COMMISSIONER NOR HAS THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR SUCH COMMISSIONER PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The Debt Securities may be sold directly to purchasers or to dealers or underwriters or through agents to be designated from time to time, subject to the approval of certain legal matters by counsel for such purchasers, dealers, underwriters or agents. Net proceeds to the Company will be the purchase price in the case of a purchaser or dealer, the public offering price less underwriting discount in the case of an underwriter or the purchase price less commission in the case of an agent less, in each case, other attributable issuance and distribution expenses. See "Plan of Distribution" for possible indemnification arrangements for dealers, underwriters and agents.
The date of this Prospectus is , 1996
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFERING MADE HEREBY, AND IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH IT RELATES OR AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION MAY NOT BE LEGALLY MADE. THE DELIVERY OF THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected and copied at the public reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth Street N.W., Room 1024, Washington, D.C. 20549, and at the following regional offices of the Commission: 7 World Trade Center, Suite 1300, New York, New York 10048, and The Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can be obtained at prescribed rates from the Public Reference Section of the Commission, 450 Fifth Street N.W., Washington, D.C. 20549. Reports, proxy statements and other information concerning the Company may also be inspected at the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of a Registration Statement filed by the Company with the Commission under the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus omits certain of the information contained in the Registration Statement, and reference is hereby made to the Registration Statement and related exhibits for further information with respect to the Company and the securities offered hereby. Statements contained herein concerning the provisions of any document are not necessarily complete and, in each instance, reference is made to the copy of such document filed as an exhibit to the Registration Statement or otherwise filed with the Commission. Each such statement is qualified in its entirety by such reference. These documents may be inspected without charge at the office of the Commission at Judiciary Plaza, 450 Fifth Street N.W., Washington, D.C. 20549, and copies may be obtained at fees and charges prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant to the Exchange Act are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the year ended December 31, 1995, filed with the Commission on March 15, 1996; and
(2) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the Company's fiscal year referred to in (1) above.
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of this offering are hereby incorporated by
reference into this Prospectus and shall be deemed a part hereof from the
respective dates of filing of such reports and documents. Any statement
contained in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference in this Prospectus modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will furnish without charge to each person to whom a Prospectus is delivered, upon written or oral request, a copy of any or all of the foregoing documents incorporated herein by reference (other than certain exhibits). Requests for such documents should be directed to Jeffrey W. Basch, Chief Accounting Officer, The Progressive Corporation, at 6300 Wilson Mills Road, Mayfield Village, Ohio 44143 or by telephone at (216) 446-2851.
THE COMPANY
The Company is an insurance holding company which has 64 operating subsidiaries and one mutual insurance company affiliate. Progressive Casualty Insurance Company is the principal operating subsidiary. The insurance company subsidiaries and affiliate provide personal automobile insurance and other specialty property/casualty insurance and related services throughout the United States and in Canada. Of the approximately 250 United States insurance company groups writing private passenger auto insurance, the Progressive insurance group ranked 7th in size based on 1994 direct premiums written, as reported by A.M. Best Company Inc. in their 1994 A(2) report for all private passenger auto writers.
The Company's core business, which accounted for 97% of the Company's total net premiums written in 1995, writes insurance for private passenger automobiles, recreational vehicles and small fleets of commercial vehicles. The substantial portion of this business is written under nonstandard automobile programs, which provide insurance for private passenger automobile risks that have been rejected or cancelled by other insurers. The Progressive insurance group is a major participant in the nonstandard automobile segment of the property/casualty insurance industry. The Company also writes standard and preferred auto risks, which represented between 5% and 10% of total core business volume in 1995.
The Company's diversified businesses, which accounted for 3% of total net premiums written in 1995, offer collateral protection coverage for automobile lenders and loan tracking for financial institutions, directors and officers liability and fidelity coverage for American Bankers Association member community banks, and underwriting and claim servicing for state involuntary residual market commercial and personal auto programs and other commercial enterprises.
Prospective purchasers of Debt Securities should be aware that ownership of Debt Securities may involve certain risks. For example, the Company encounters vigorous competition in the automobile insurance and other property/casualty markets in which it operates. See the "Competitive Factors" discussion contained in Item 1 of the Company's 1995 Annual Report on Form 10-K. In addition, the Company's business is subject to extensive state regulation. See the "Insurance Regulation" discussion contained in Item 1 of the Company's 1995 Annual Report on Form 10-K.
The Company's principal executive office is located at 6300 Wilson Mills Road, Mayfield Village, Ohio 44143, and its telephone number is (216) 461-5000.
USE OF PROCEEDS
Except as otherwise provided in an applicable Prospectus Supplement, the net proceeds will be used by the Company for general corporate purposes. Unless and until otherwise applied, the net proceeds will be added to the investment portfolios of the Company or its subsidiaries and may be used, in whole or in part, to support premium growth. Such proceeds will be invested in securities of approximately the same quality and maturities as those currently held in such investment portfolios. A discussion of the nature of such securities, and the risks relating thereto, is set forth in the "Investments" section of Management's Discussion and Analysis of Financial Condition and Results of Operations contained in the Company's 1995 Annual Report on Form 10-K.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
The following selected consolidated financial information concerning the Company and its subsidiaries for the five years ended December 31, 1995, should be read in conjunction with the more detailed information and financial statements incorporated by reference herein and available as described under "Available Information" and "Incorporation of Certain Documents by Reference." All per share amounts have been adjusted to reflect the 3-for-1 stock split of the Common Shares effected on December 8, 1992.
YEARS ENDED DECEMBER 31,
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1995 1994 1993 1992 1991
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(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
Direct premiums written:
Personal lines........................... $2,644.6 $2,181.7 $1,548.9 $1,214.6 $1,047.4
Commercial lines......................... 424.3 463.4 417.5 422.2 489.4
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Total direct premium written............... $3,068.9 $2,645.1 $1,966.4 $1,636.8 $1,536.8
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Net premiums written(1)(2)................. $2,912.8 $2,457.2 $1,819.2 $1,451.2 $1,324.6
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Revenues:
Premiums earned(2)....................... $2,727.2 $2,191.1 $1,668.7 $1,426.1 $1,286.9
Investment income(3)..................... 199.1 158.5 134.5 139.0 144.8
Net realized gains on security
sales(4).............................. 46.7 23.8 107.9 14.5 7.4
Service revenues......................... 38.9 41.9 43.7 53.3 54.0
Proposition 103 reserve reduction(5)..... -- -- -- 106.0 --
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Total revenues............................. 3,011.9 2,415.3 1,954.8 1,738.9 1,493.1
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Expenses:
Losses and loss adjustment expenses(6)... 1,943.8 1,397.3 1,028.0 930.9 858.0
Policy acquisition costs................. 459.6 391.5 311.6 304.1 313.7
Other underwriting expenses.............. 167.2 150.8 151.3 141.5 162.1
Investment expenses...................... 8.1 8.7 10.2 17.0 22.5
Service and other expenses............... 30.2 31.9 36.9 57.6 56.1
Interest expense......................... 57.1 55.3 39.7 44.5 47.8
Non-recurring items(7)................... -- -- 4.0 64.6 --
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Total expenses............................. 2,666.0 2,035.5 1,581.7 1,560.2 1,460.2
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Income before income taxes and cumulative
effect of accounting change.............. 345.9 379.8 373.1 178.7 32.9
Provision for income taxes................. 95.4 105.5 105.8 39.1 --
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Income before cumulative effect of
accounting change........................ 250.5 274.3 267.3 139.6 32.9
Cumulative effect of accounting
change(8)................................ -- -- -- 14.2 --
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Net income................................. $ 250.5 $ 274.3 $ 267.3 $ 153.8 $ 32.9
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YEARS ENDED DECEMBER 31,
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1995 1994 1993 1992 1991
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Per Common Share(6)(9):
Income before cumulative effect of
accounting change:
Primary............................... $3.26 $3.59 $3.59 $2.09 $.41
Fully diluted......................... 3.24 3.59 3.58 1.85 .41
Net income:
Primary............................... 3.26 3.59 3.59 2.32 .41
Fully diluted......................... 3.24 3.59 3.58 2.05 .41
Ratio of earnings to fixed charges(10)..... 6.6x 7.3x 9.2x 4.6x 1.6x
Ratio of earnings to combined fixed charges
and preferred share dividend
requirements(10)......................... 5.6x 6.1x 7.1x 3.7x 1.5x
GAAP operating ratios:
Loss and loss adjustment expense
ratio(6).............................. 71.3% 63.8% 61.6% 65.3% 66.7%
Underwriting expense ratio............... 23.0% 24.7% 27.7% 31.2% 37.0%
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Combined ratio(6)........................ 94.3% 88.5% 89.3% 96.5% 103.7%
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Statutory operating ratios:
Loss and loss adjustment expense
ratio(6).............................. 71.6% 64.2% 62.6% 68.3% 65.7%
Underwriting expense ratio............... 21.4% 22.4% 25.4% 29.8% 33.5%
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Combined ratio(6)(11).................... 93.0% 86.6% 88.0% 98.1% 99.2%
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DECEMBER 31,
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1995 1994 1993 1992 1991
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(DOLLARS IN MILLIONS)
Total assets(12)......................... $5,352.5 $4,675.1 $4,011.3 $3,440.9 $3,317.2
Funded debt.............................. 675.9 675.6 477.1 568.5 644.0
Shareholders' equity(6)(12).............. 1,475.8 1,151.9 997.9 629.0 465.7
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(1) Total direct premiums written net of reinsurance.
(2) From 1989 until the second quarter of 1992, the Company maintained a reserve for potential premium refunds under rollback and refund provisions of California's Proposition 103. For the twelve months ended December 31, 1992 and 1991, net premiums written and premiums earned were reduced $10.2 million and $49.7 million, respectively. As a result, net income for the twelve months ended December 31, 1992 and 1991, were reduced $6.7 million, or $.09 per share, and $32.8 million, or $.43 per share, respectively.
(3) Investment income includes dividends and interest.
(4) Increase in net realized gains on security sales for the twelve months ended December 31, 1993, is primarily due to the sale of certain equity securities held in the Company's investment portfolio, which accounted for $74.3 million of the total gain.
(5) On June 12, 1992, the Company reached agreement with the California Department of Insurance to refund approximately $50 million of premiums (including interest) on business written between November 8, 1988 and November 7, 1989 to approximately 260,000 policyholders, thereby settling all rollback and refund exposure since Proposition 103 was adopted in November 1988. As a result, the Company's Proposition 103 premium refund and rollback reserve was reduced by $106.0 million and net income was increased $70.0 million, or $.97 per share, for the year ended December 31, 1992.
(6) In 1994, the Company eliminated its "supplemental reserve," resulting in a one-time decrease to loss and loss adjustment expenses of $71.0 million, or $.62 per share, and increasing the combined ratio 3.2 points and shareholders' equity $46.2 million. See paragraph 5 of the "Results of Operations" section
in Management's Discussion and Analysis of Financial Condition and Results of Operations, incorporated by reference from the Company's Annual Report on Form 10-K for the year ended December 31, 1995.
(7) Non-recurring items include (a) a $4.0 million charge resulting from the
redemption of the Company's 8 3/4% Debentures due 2017 in December 1993,
(b) a $10 million payment to Alfred Lerner made in December 1992, pursuant
to an agreement under which he agreed, among other matters, to convert $75
million in principal amount of the Company's Floating Rate Convertible
Subordinated Debentures due 2008 (the "Convertible Debentures") into
9,000,000 Common Shares and to terminate his employment agreement with the
Company, and (c) a one-time charge, including an additional incentive fee
for the period ended June 30, 1992, in the amount of $54.6 million paid by
the Company to Progressive Partners Limited Partnership ("Progressive
Partners") for terminating the Company's Investment Management Agreement
with Progressive Partners. In December 1992, Mr. Lerner sold in an
underwritten public offering 5,175,000 of the Common Shares received upon
the conversion of the Convertible Debentures and since that date has sold
the balance of such Common Shares.
(8) Effective January 1, 1992, the Company adopted Statement of Financial Accounting Standards (SFAS) 109, "Accounting for Income Taxes," which changes the method of accounting for income taxes. Under SFAS 109, the Company is able to demonstrate that the benefit of deferred tax assets is fully realizable. The cumulative effect of adopting SFAS 109 increased net income $14.2 million, or $.20 per share, for the year ended December 31, 1992; the deferred tax asset writedown was taken in 1991, as required under SFAS 96.
(9) Net income is reduced by Preferred Share dividends earned during the period and the excess of the fair value over the carrying amount of Preferred Shares repurchased for both the primary and fully diluted earnings per share calculations. Primary earnings per share are computed using the weighted average number of Common Shares and equivalents, including stock options, outstanding during the period. Prior to December 16, 1992 (the date of conversion of the Convertible Debentures), fully diluted earnings per share assumed the conversion of the Convertible Debentures and the effects of related interest expense and income taxes. See Note 7 above.
(10) Earnings consist of income before Federal income taxes and cumulative effect of accounting change ($14.2 million in 1992) and before fixed charges. Fixed charges consist of interest and amortization on indebtedness and the portion of rents representative of the interest factor. Combined fixed charges and preferred share dividend requirements consist of fixed charges and pretax earnings required to pay preferred share dividends.
(11) Industry combined ratios for the personal auto insurance market, presented on a statutory basis and obtained from A.M. Best Company Inc.'s "Best's Review -- P/C Insurance Edition" dated January 1996, are set forth below:
YEARS ENDED DECEMBER 31,
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1995(EST.) 1994 1993 1992 1991
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102.3% 101.3% 101.7% 102.0% 104.7%
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(12) As of December 31, 1993, the Company elected to early adopt SFAS 115, "Accounting for Certain Investments in Debt and Equity Securities." In November 1995, the Financial Accounting Standards Board issued a special report entitled "A Guide to Implementation of Statement 115 on Accounting for Certain Investments in Debt and Equity Securities." Concurrent with the initial adoption of this implementation guidance, the Company was able to reassess the appropriateness of the classifications of all securities held at that time. As a result, on December 1, 1995, the Company reclassified its entire held-to-maturity portfolio of $248.4 million to available-for-sale, recognizing $10.4 million in gross unrealized gains.
DESCRIPTION OF DEBT SECURITIES
The Company may offer under this Prospectus and one or more Prospectus Supplements Debt Securities not exceeding $200,000,000 in aggregate initial public offering price. The following description of the terms of the Debt Securities sets forth certain general terms and provisions of the Debt Securities which may be offered under a Prospectus Supplement. The particular terms and provisions of the Debt Securities offered by any Prospectus Supplement and the extent, if any, to which such general provisions may apply to the Debt Securities so offered will be described in the Prospectus Supplement relating to such Debt Securities.
The Debt Securities offered hereby will represent unsecured general obligations of the Company and will rank on a parity with all other existing and future unsecured and unsubordinated indebtedness of the Company and prior to subordinated indebtedness, if any. The Debt Securities are to be issued under an Indenture dated as of September 15, 1993 (which, as heretofore supplemented and amended, is referred to herein as the "Indenture") between the Company and State Street Bank and Trust Company, as Trustee (the "Trustee"). Debt Securities may be issued in one or more series under the Indenture. The Indenture does not limit the amount of Debt Securities or any other debt which may be incurred by the Company. In addition, the provisions of the Indenture do not afford holders of the Debt Securities protection in the event of a highly leveraged transaction, reorganization, restructuring, merger or similar transaction involving the Company that may adversely affect holders of the Debt Securities. The following summaries of certain provisions of the Indenture do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all provisions of the Indenture, which is an exhibit to the Registration Statement of which this Prospectus is a part. Certain capitalized terms used herein are defined in the Indenture. References are to sections or articles of the Indenture.
GENERAL
The Indenture does not limit the amount of Debt Securities which may be issued thereunder and provides that Debt Securities may be issued in series thereunder up to the aggregate principal amount which may be authorized from time to time by the Company. The Debt Securities may be denominated and payable in U.S. dollars, foreign currencies or units based on or relating to U.S. or foreign currencies. Debt Securities may be offered to the public on terms determined by market conditions at the time of sale.
Reference is made to the appropriate Prospectus Supplement for the
following terms of each series of Debt Securities in respect of which this
Prospectus is being delivered: (1) the designation, aggregate principal amount
and authorized denominations of such Debt Securities; (2) the purchase price of
such Debt Securities (expressed as a percentage of the principal amount
thereof); (3) the date on which such Debt Securities will mature; (4) the rate
or rates (which may be fixed or variable) per annum at which such Debt
Securities will bear interest, if any, or the method by which such rate or rates
will be determined; (5) the coin or currency or units based on or relating to
currencies in which Debt Securities may be purchased and in which payment of
principal and interest will be made; (6) the periods for which and the dates on
which such interest, if any, will be payable; (7) the place or places where the
principal of and interest, if any, on such Debt Securities will be payable; (8)
the terms of any mandatory or optional redemption (including any sinking fund);
(9) whether such Debt Securities will be issuable in registered form or bearer
form (with or without coupons) or both, and, if Debt Securities in bearer form
will be issued, restrictions applicable to the exchange of one form for another
and to the offer, sale and delivery of Debt Securities in bearer form; (10)
whether, and under what circumstances, the Company will pay additional amounts
on such Debt Securities held by a person who is not a U.S. person (as defined in
an appropriate Prospectus Supplement) in respect of any tax, assessment or
governmental charge withheld or deducted, and if so, whether the Company will
have the option to redeem such Debt Securities rather than pay such additional
amounts; and (11) any other specific terms of such series. If a Prospectus
Supplement specifies that Debt Securities are denominated in a currency other
than U.S. dollars or U.S. currency units, such Prospectus Supplement shall also
specify the denomination in which such Debt Securities will be issued and the
coin or currency or currency unit in which the principal of and premium, if any,
and interest on such Debt Securities will be payable, which may be U.S. dollars
based upon the exchange rate for such other currency or currency unit existing
on or about the time a payment is due.
Debt Securities may be presented for exchange and registered Debt Securities may be presented for transfer in the manner, at the places and subject to the restrictions set forth in the Indenture. Such services will be provided without charge, other than any tax or other governmental charge payable in connection therewith, but subject to the limitations provided in the Indenture. Debt Securities in bearer form and the coupons, if any, pertaining thereto will be transferable by delivery.
The Debt Securities will be unsecured. The Debt Securities will rank on a parity with all other existing and future unsecured and unsubordinated indebtedness of the Company and prior to subordinated indebtedness, if any. Because the Company is a holding company, however, its rights and the rights of its creditors to participate in the assets of any subsidiary upon the latter's liquidation or recapitalization (and thus the ability of holders of the Debt Securities to benefit as creditors of the Company in such liquidation or recapitalization) will be subject to the prior claims of the subsidiary's creditors, except to the extent that the Company may itself be a creditor with recognized claims (other than as a holder of the subsidiary's outstanding shares of capital stock) against the subsidiary.
In addition, insurance statutes in many states limit the extent to which regulated insurance companies may pay dividends and transfer assets to their affiliates and either prohibit or require prior approval for the payment of dividends and other distributions in excess of such limits. Since a source of the Company's internally generated cash flow is dividends paid to it by its subsidiaries, the Company's ability to meet its obligations (including the obligation to pay principal of and premium, if any, and interest on the Debt Securities) may be affected by any such limitations or prior approval requirements.
GLOBAL SECURITIES
The Debt Securities may be issued in the form of one or more global securities (a "Global Security") that will be deposited with a depositary (a "Depositary") or with a nominee for a Depositary identified in an appropriate Prospectus Supplement and registered in the name of the Depositary or a nominee thereof. In such case, one or more Global Securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal amount of outstanding Debt Securities to be represented by such Global Security or Securities. Unless and until it is exchanged in whole or in part for Debt Securities in definitive registered form, a Global Security may not be transferred, except as a whole by the Depositary for such Global Security to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor of such Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any Debt Securities to be represented by a Global Security will be described in a Prospectus Supplement relating thereto.
EVENTS OF DEFAULT, WAIVER AND NOTICE
As to any series of Debt Securities, an Event of Default is defined in the
Indenture as (a) default for 30 days in payment of any interest on the Debt
Securities of such series; (b) default in payment of principal of or premium, if
any, on the Debt Securities of such series when due either at maturity, upon
redemption, by declaration or otherwise; (c) default in the payment of a sinking
fund installment, if any, on the Debt Securities of such series; (d) default by
the Company in the performance of any other covenant or warranty contained in
the Indenture for the benefit of such series which shall not have been remedied
for a period of 60 days after notice given as specified in the Indenture; and
(e) certain events of bankruptcy, insolvency and reorganization of the Company.
(Section 5.1 of the Indenture.) An Event of Default with respect to a particular
series of Debt Securities issued under the Indenture does not necessarily
constitute an Event of Default with respect to any other series of Debt
Securities issued thereunder. The Indenture provides that the Trustee may
withhold notice to the holders of Debt Securities of any series of any default
(except in payment of principal of, or premium, if any, or interest on such Debt
Securities) if the Trustee considers it in the interest of the holders of Debt
Securities of such series to do so; provided, however, that in the case of a
default of the character specified in clause (d) above, no such notice to
holders of Debt Securities of such series shall be given until at least 30 days
after the occurrence thereof. (Section 5.11 of the Indenture.)
The Indenture provides that (1) if an Event of Default described in clause
(a), (b), (c) or (d) above with respect to a particular series of Debt
Securities shall have occurred and be continuing, either the Trustee or the
holders of at least 25% in principal amount of the Debt Securities of such
series then outstanding may declare the entire principal (or, in the case of
original issue discount Debt Securities, the portion thereof specified in the
terms thereof) of all outstanding Debt Securities of such series and the
interest accrued thereon, if any, to be due and payable immediately and (2) if
an Event of Default described in clause (e) above shall have occurred and be
continuing, either the Trustee or the holders of at least 25% in principal
amount of all Debt Securities then outstanding thereunder (voting as one class)
may declare the entire principal (or, in the case of original issue discount
Debt Securities, the portion thereof specified in the terms thereof) of all Debt
Securities then outstanding thereunder and the interest accrued thereon, if any,
to be due and payable immediately, but upon certain conditions such declarations
may be annulled and past defaults (except for defaults in the payment of
principal of or premium, if any, or interest on such Debt Securities) may be
waived by the holders of a majority in principal amount of the Debt Securities
of such series (or of all series thereunder, as the case may be) then
outstanding. (Sections 5.1 and 5.10 of the Indenture.)
The Indenture provides that holders of a majority in principal amount of the outstanding Debt Securities of each series affected (with each series voting as a separate class) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee under the Indenture with respect to Debt Securities of such series, subject to certain limitations specified in the Indenture, provided that the holders of Debt Securities shall have offered to the Trustee reasonable security or indemnity against expenses and liabilities. (Sections 5.9 and 6.2(d) of the Indenture.) The Indenture requires the annual delivery by the Company to the Trustee of a written statement as to the absence of certain defaults under the Indenture. (Section 3.5 of the Indenture.) Whenever the Indenture provides for an action by, or the determination of any of the rights of, or any distribution to, holders of Debt Securities denominated in U.S. dollars and in any other currency or currency unit, in the absence of any provision to the contrary in the form of Debt Security of any particular series, any amount in respect of any Debt Security denominated in a currency or currency unit other than U.S. dollars shall be treated for any such action or distribution as the amount of U.S. dollars that could be obtained for such amount on such reasonable basis of exchange and as of such date as the Company reasonably specifies to the Trustee or in the absence of such specification, as the Trustee may determine. (Section 11.11 of the Indenture.) Under the terms of the Indenture, the holders of a majority in aggregate principal amount of all series of the Debt Securities to be affected thereby at the time outstanding may waive compliance with certain covenants contained in the Indenture. (Section 5.10 of the Indenture.)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than 66 2/3% in aggregate principal amount of the Debt Securities of all series affected by such modification at the time outstanding (voting as one class), to modify the Indenture or any supplemental indenture or the rights of the holders of such Debt Securities; provided that no such modification shall (i) extend the final maturity of any Debt Security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or change the currency or currency unit of payment thereof, or change the method by which amounts of payments of principal or interest thereon are determined, or reduce the portion of the principal amount of an original issue discount Debt Security due and payable upon acceleration of the maturity thereof or the portion of the principal amount thereof provable in bankruptcy, or reduce any amount payable upon redemption of any Debt Security, or impair or affect the right of a holder to institute suit for the payment thereof or, if the Debt Securities provide therefor, any right of repayment at the option of the holder of a Debt Security, without the consent of the holders of each Debt Security so affected or (ii) reduce the aforesaid percentage of Debt Securities of any series, the consent of the holders of which is required for any such modification, without the consent of the holder of each Debt Security so affected. (Section 8.2 of the Indenture.) The Indenture also provides that the Company and the Trustee may from time to time execute supplemental indentures. (Section 8.1 of the Indenture.)
CONSOLIDATIONS, MERGERS, AND SALES OF ASSETS
The Company may not merge or consolidate with any other corporation or sell or convey all or substantially all of its assets to any Person, unless either the Company shall be the continuing corporation or the successor corporation shall be a corporation organized under the laws of the United States or any state thereof and shall expressly assume the payment of the principal of and interest on the Debt Securities and the performance and observance of all the covenants and conditions of the Indenture binding upon the Company, and, immediately after such merger or consolidation, or such sale or conveyance, the Company or such successor corporation shall not be in default in the performance of any such covenant or condition. (Article Nine of the Indenture.) No quantitative or other established meaning has been given to the phrase "all or substantially all" by courts which have interpreted this phrase in various contexts. In interpreting this phrase, courts make a subjective determination as to the portion of assets sold or conveyed, considering such factors as the value of the assets sold or conveyed and the proportion of an entity's income derived from the assets sold or conveyed. Accordingly, there may be uncertainty as to whether holders of the Debt Securities can determine whether the Company has sold or conveyed all or substantially all of its assets and exercise any remedies such holders may have upon the occurrence of any such transaction.
DEFEASANCE
The Indenture provides that, unless the terms of any series of Debt Securities provide otherwise, the Company will be discharged from obligations in respect of the outstanding Debt Securities of any series and the provisions of the Indenture with respect thereto (excluding certain obligations, such as obligations to register the transfer or exchange of such outstanding Debt Securities, to replace stolen, lost or mutilated certificates or coupons, and to hold moneys for payment in trust), upon the irrevocable deposit, in trust, of cash or U.S. Government obligations (as defined in the Indenture) which, through the payment of interest and principal thereof in accordance with their terms, will provide cash in an amount sufficient to pay the principal of and premium, if any, and interest on and mandatory sinking fund payments, if any, in respect of outstanding Debt Securities of such series on the stated dates such payments are due in accordance with the terms of the Indenture and such outstanding Debt Securities, provided that the Company has received an opinion of counsel to the effect that such a discharge will not be deemed, or result in, a taxable event with respect to holders of such outstanding Debt Securities and that certain other conditions are met. (Section 10.1(B) of the Indenture.)
SATISFACTION AND DISCHARGE
The Indenture will cease to be of further effect and the Trustee, on demand of and at the expense of the Company, shall execute appropriate instruments acknowledging the satisfaction and discharge of the Indenture upon compliance with certain enumerated conditions, including the Company having paid all sums payable by the Company under the Indenture, when either (a) the Company shall have delivered to the Trustee for cancellation all Debt Securities theretofore authenticated or (b) all Debt Securities not theretofore delivered to the Trustee for cancellation shall have become due and payable or are by their terms to become due and payable within one year. (Section 10.1(A) of the Indenture.)
GOVERNING LAW
The Debt Securities and the Indenture will be governed by the laws of the State of New York. (Section 11.8 of the Indenture.)
CONCERNING THE TRUSTEE
The Company entered into the Indenture with The First National Bank of Boston, as Trustee ("FNBB"), pursuant to which the Company may issue one or more series of its debt securities. Effective October 2, 1995, State Street Bank and Trust Company acquired the trust business of FNBB, and, as a result, State Street Bank and Trust Company became and is currently the Trustee under the Indenture. State Street Bank and Trust Company may from time to time make loans to the Company, and various subsidiaries of the
Company may participate in loan syndications or other investments offered by State Street Bank and Trust Company from time to time, in the normal course of business. State Street Bank and Trust Company also serves as trustee for the Company's outstanding 10% Notes due December 15, 2000, 10 1/8% Subordinated Notes due December 15, 2000, 8 3/4% Notes due June 1, 1999, 7% Notes due October 1, 2013 and 6.60% Notes due January 15, 2004.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby (i) through agents, (ii) through underwriters, (iii) through dealers or (iv) directly to one or more purchasers. The Prospectus Supplement with respect to a particular offering of Debt Securities will set forth the terms of the offering of such Debt Securities, including the name or names of the specific agents, dealers or underwriters (including managing underwriters, if any), the purchase price and the proceeds to the Company from such sales, any underwriting discounts, agency fees or commissions and other items constituting compensation to the underwriters, agents or dealers, initial public offering price, any discounts or concessions to be allowed or reallowed or paid to dealers, the securities exchange, if any, on which such Debt Securities may be listed, and the place and time of delivery of the Debt Securities offered.
Debt Securities may be offered and sold through agents designated by the Company from time to time. Unless otherwise indicated in the applicable Prospectus Supplement, any such agent will be acting on a best efforts basis for the period of its appointment. Any such agent may be deemed to be an underwriter, as that term is defined in the Securities Act, of any Debt Securities so offered and sold. Agents may be entitled under agreements which may be entered into with the Company to indemnification by the Company against certain liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with, or perform services for, the Company in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale of any Debt Securities, the Company will execute an underwriting agreement with such underwriter or underwriters at the time an agreement for such sale is reached. Such underwriter or underwriters will acquire Debt Securities for their own account and may resell such Debt Securities from time to time in one or more transactions, including negotiated transactions, at fixed public offering prices or at varying prices determined at the time of sale. Debt Securities may be offered to the public either through underwriting syndicates represented by managing underwriters, or by underwriters without a syndicate. The underwriters may be entitled, under the relevant underwriting agreement, to indemnification by the Company against certain liabilities, including liabilities under the Securities Act. If any underwriter or underwriters are utilized in the sale of any Debt Securities, unless otherwise set forth in the applicable Prospectus Supplement, the underwriting agreement will provide that the obligations of the underwriters will be subject to certain conditions precedent and that the underwriters with respect to a sale of such Debt Securities will be obligated to purchase all such Debt Securities if any are purchased.
If a dealer is utilized in the sale of any Debt Securities in respect of which this Prospectus is delivered, the Company will sell such Debt Securities to the dealer, as principal. The dealer may then resell such Debt Securities to the public at varying prices to be determined by such dealer at the time of resale. Any such dealer may be deemed to be an underwriter, as such term is defined in the Securities Act, of the Debt Securities so offered and sold. Dealers may be entitled, under agreements which may be entered into with the Company, to indemnification by the Company against certain liabilities, including liabilities under the Securities Act. The name of any such dealer and the terms of the transaction will be set forth in a Prospectus Supplement relating thereto.
Offers to purchase Debt Securities may be solicited directly by the Company and sales thereof may be made by the Company directly to institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any sale thereof. The terms of any such sales will be described in a Prospectus Supplement relating thereto.
If so indicated in an appropriate Prospectus Supplement, the Company may authorize agents and underwriters to solicit offers by certain institutions to purchase Debt Securities from the Company at the public offering price set forth in such Prospectus Supplement pursuant to delayed delivery contracts ("Contracts") providing for payment and delivery on the date stated in such Prospectus Supplement. Each Contract will be for an amount not less than and, unless the Company otherwise agrees, the aggregate principal amount of Debt Securities sold pursuant to Contracts shall be not less nor more than the respective amounts stated in such Prospectus Supplement. Institutions with whom Contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to the approval of
the Company in its sole discretion. The obligations of a purchaser under any Contract will not be subject to any conditions except that any related sale of Debt Securities to underwriters shall have occurred and the purchase by an institution of the Debt Securities covered by its Contract shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which such institution is subject. A commission indicated in such Prospectus Supplement will be paid to underwriters and agents soliciting purchases of Debt Securities pursuant to Contracts accepted by the Company. The underwriters or agents will not have any responsibility in respect of the validity or performance of Contracts.
The place and time of delivery of the Debt Securities in respect of which this Prospectus is delivered will be set forth in an accompanying Prospectus Supplement.
LEGAL MATTERS
Unless otherwise indicated in a Prospectus Supplement relating to the Debt Securities, certain legal matters in connection with the Debt Securities will be passed upon for the Company by Baker & Hostetler, Cleveland, Ohio. Certain legal matters in connection with the Debt Securities offered hereby will be passed upon for any purchasers, dealers, underwriters or agents by Davis Polk & Wardwell, New York, New York. Davis Polk & Wardwell may rely as to all matters of Ohio law on the opinion of Baker & Hostetler, and Baker & Hostetler may rely as to all matters of New York law on the opinion of Davis Polk & Wardwell. Davis Polk & Wardwell may represent the Company from time to time in connection with certain legal matters.
EXPERTS
The consolidated financial statements and financial statement schedules of The Progressive Corporation and subsidiaries as of December 31, 1995, and for each of the years in the three-year period then ended, all incorporated by reference in the Registration Statement of which this Prospectus forms a part, have been incorporated herein in reliance on the report of Coopers & Lybrand L.L.P., independent accountants, given on the authority of that firm as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Except for the Registration Fee, all fees and expenses are estimated:
Registration Fee -- Securities and Exchange Commission.................... $ 68,966
Trustee's Fees and Expenses............................................... 10,000
Accounting Fees and Expenses.............................................. 25,000
Legal Fees and Expenses................................................... 50,000
Blue Sky Fees and Expenses (including related fees and expenses of
counsel)................................................................ 20,000
Printing Expenses......................................................... 20,000
Rating Agency Fees........................................................ 125,000
Miscellaneous Expenses.................................................... 6,034
--------
Total........................................................... $325,000
========
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VI of the Code of Regulations of the Company provides for indemnification of any director, officer or employee in certain instances, as permitted under Section 1701.13(E) of the Ohio Revised Code, against expenses, judgments, decrees, fines, penalties or amounts paid in settlement in connection with the defense of any action, suit or proceeding, criminal or civil, to which he was, is or may be a party by reason of his status as such director, officer or employee.
A director, officer or employee is entitled to indemnification if he is successful on the merits or otherwise in the defense of any such action, suit or proceeding or if a determination is made pursuant to Article VI of the Code of Regulations (i) by the directors of the Company acting at a meeting at which a quorum consisting of directors who neither were nor are parties to or threatened with any such action, suit or proceeding is present or (ii) by the shareholders of the Company at a meeting held for such purpose by the affirmative vote of the holders of shares entitling them to exercise a majority of the voting power of the Company on such proposal or without a meeting by the written consent of the holders of shares entitling them to exercise two-thirds of the voting power on such proposal, that such director, officer or employee (a) was not, and has not been adjudicated to have been, negligent or guilty of misconduct in the performance of his duty to the Company, (b) acted in good faith and in a manner he reasonably believed to be in the best interest of the Company and (c) in any matter the subject of a criminal action, suit or proceeding, had no reasonable cause to believe that his conduct was unlawful.
The expenses of each director, officer or employee incurred in defending any such action, suit or proceeding, whether threatened or actual, may be paid by the Company as they are incurred in advance of the final disposition of such action, suit or proceeding, as authorized by the Board of Directors in the specific case, upon receipt of an undertaking by the director, officer or employee to repay such expenses unless it shall ultimately be determined that he is entitled to be indemnified by the Company.
Additionally, Section 1701.13(E)(5)(a) of the Ohio Revised Code provides that, unless prohibited by specific reference in a corporation's articles of incorporation or code of regulations (which prohibition is not contained in the Company's Articles of Incorporation or Code of Regulations) a corporation shall pay a director's expenses, including attorneys' fees, as such expenses are incurred, in defending an action, suit or proceeding brought against a director in such capacity, whether such action, suit or proceeding is brought by a third party or by or in the right of the corporation, provided the director delivers to the corporation an undertaking to (a) repay such amount if it is proved by clear and convincing evidence in a court of competent jurisdiction that his action or failure to act was undertaken with deliberate intent to injure the corporation or with reckless disregard for the best interests of the corporation and (b) reasonably cooperate with the corporation in such action, suit or proceeding.
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Section 1701.13(E)(7) of the Ohio Revised Code provides that a corporation may purchase insurance or furnish similar protection for any director, officer or employee against any liability asserted against him in any such capacity, whether or not the corporation would have power to indemnify him under Ohio law. Such insurance may be purchased from or maintained with a person in which the corporation has a financial interest.
The Company maintains directors and officers liability insurance in the amount of $20,000,000 under a policy issued by a wholly owned subsidiary of the Company. The risks covered by such policy include certain liabilities under the securities laws.
See the proposed form of Underwriting Agreement, filed as Exhibit 1, for certain provisions relating to indemnification of the Company and its directors and officers.
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
------- -------------------------------------------------------------------------------
1 -- Proposed Form of Underwriting Agreement
4.1 -- Indenture between the Registrant and The First National Bank of Boston,
Trustee, dated as of September 15, 1993 (the "Indenture"), is incorporated by
reference to Exhibit 4(A) of the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1993 (filed with the Commission on November 5,
1993)
4.2 -- Supplemental Indenture dated March 15, 1996 between the Registrant and State
Street Bank and Trust Company, evidencing the designation of State Street Bank
and Trust Company as successor trustee under the Indenture
4.3 -- Proposed Form of Debt Security
5 -- Opinion of Baker & Hostetler
12.1 -- Computation of Ratio of Earnings to Fixed Charges
12.2 -- Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Share
Dividend Requirements
23.1 -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Baker & Hostetler (included in Exhibit 5)
24.1 -- Powers of Attorney
24.2 -- Certified resolution of the Company's Board of Directors authorizing the
signing on behalf of the Company pursuant to a power of attorney
25 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 of State Street Bank and Trust Company
28 -- Schedule P as filed with state regulatory authorities is incorporated by
reference to Exhibit 28 of the Company's Annual Report on Form 10-K for the
year ended December 31, 1995 (filed with the Commission on March 15, 1996)
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ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of the securities registered hereby, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
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changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person of the Registrant in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Mayfield Village, State of Ohio, on March 15, 1996.
THE PROGRESSIVE CORPORATION
By: /s/ DAVID M. SCHNEIDER ------------------------------------ David M. Schneider, Secretary |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on March 15, 1996.
SIGNATURE TITLE
- ------------------------------------------ -------------------------------------------------
* Chairman, President and Director (Principal
- ------------------------------------------ Executive Officer)
Peter B. Lewis
/s/ CHARLES B. CHOKEL Treasurer (Principal Financial Officer)
- ------------------------------------------
Charles B. Chokel
/s/ JEFFREY W. BASCH Principal Accounting Officer
- ------------------------------------------
Jeffrey W. Basch
* Director
- ------------------------------------------
Milton N. Allen
* Director
- ------------------------------------------
B. Charles Ames
* Director
- ------------------------------------------
Stephen R. Hardis
* Director
- ------------------------------------------
Janet Hill
* Director
- ------------------------------------------
Norman S. Matthews
* Director
- ------------------------------------------
Donald B. Shackelford
* Director
- ------------------------------------------
Paul B. Sigler
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* David M. Schneider, by signing his name hereto, does sign this Registration Statement on behalf of the persons indicated above pursuant to powers of attorney duly executed by such persons filed as an Exhibit to the Registration Statement.
By: /s/ DAVID M. SCHNEIDER
--------------------------------------------------------
David M. Schneider, Attorney-in-Fact
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------------------------------------------------------------------------------
1 -- Proposed Form of Underwriting Agreement
4.1 -- Indenture between the Registrant and The First National Bank of Boston, Trustee,
dated as of September 15, 1993 (the "Indenture"), is incorporated by reference to
Exhibit 4(A) of the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1993 (filed with the Commission on November 5, 1993)
4.2 -- Supplemental Indenture dated March 15, 1996 between the Registrant and State Street
Bank and Trust Company, evidencing the designation of State Street Bank and Trust
Company as successor Trustee under the Indenture
4.3 -- Proposed Form of Debt Security
5 -- Opinion of Baker & Hostetler
12.1 -- Computation of Ratio of Earnings to Fixed Charges
12.2 -- Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Share
Dividend Requirements
23.1 -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Baker & Hostetler (included in Exhibit 5)
24.1 -- Powers of Attorney
24.2 -- Certified resolution of the Company's Board of Directors authorizing the signing on
behalf of the Company pursuant to a power of attorney
25 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act
of 1939 of State Street Bank and Trust Company
28 -- Schedule P as filed with state regulatory authorities is incorporated by reference
to Exhibit 28 of the Company's Annual Report on Form 10-K for the year ended
December 31, 1995 (filed with the Commission on March 15, 1996)
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Exhibit 1
UNDERWRITING AGREEMENT
___________ __, 199_
The Progressive Corporation
6300 Wilson Mills Road
Mayfield Village, Ohio 44143
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 ___%. In addition, the Underwriter has agreed to reimburse the Company for out-of-pocket expenses incurred directly in connection with this offering in the amount of $_________.
The Underwriter will pay for such Offered Securities upon delivery thereof at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017 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:
Maturity: _______ __, ____
Interest Rate: _____
Interest Payment Date: __________ and __________
Redemption Provisions,
if any:
Trustee: State Street Bank and
Trust Company
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Except as otherwise set forth herein, all the provisions contained in the document entitled "The Progressive Corporation Underwriting Agreement Standard Provisions (Debt)" dated March 1996, 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:
THE PROGRESSIVE CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
March 1996
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
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.
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 Baker & Hostetler, 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), Baker & Hostetler 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 Davis Polk & Wardwell, 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 &
Lybrand 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.
(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
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
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
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.
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
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
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.
SCHEDULE I
DELAYED DELIVERY CONTRACT
, 19
The Progressive Corporation
6300 Wilson Mills Road
Mayfield Village, Ohio 44143
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
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.
This contract shall be governed by and construed in accordance with the laws of the State of New York.
Yours very truly,
By:_________________________
Accepted:
THE PROGRESSIVE CORPORATION
By:_______________________
Title:
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
- ---- ----------- ----------
________________ __________________ ___________________
________________ __________________ ___________________
________________ __________________ ___________________
________________ __________________ ___________________
________________ __________________ ___________________
|
(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
II-2
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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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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(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
III-4
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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Exhibit 4.2
THE PROGRESSIVE CORPORATION
AND
STATE STREET BANK AND TRUST COMPANY, as
Successor Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 15, 1996
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of March 15, 1996 (this "Supplemental Indenture") by and between THE PROGRESSIVE CORPORATION, an Ohio corporation (the "Issuer") and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company ("SSB"), in its capacity as Successor Trustee (in such capacity, the "Successor Trustee").
WITNESSETH:
WHEREAS, the Issuer entered into an Indenture, dated as of September 15, 1993 (the "Indenture"), with The First National Bank of Boston ("FNBB"), in its capacity as Trustee (in such capacity, the "Original Trustee"), pursuant to which the Issuer may from time to time issue its unsecured debentures, notes and other evidences of indebtedness in one or more series; and
WHEREAS, SSB has acquired substantially all of the corporate trust business of FNBB; and
WHEREAS, the parties hereto wish to confirm the succession of SSB as trustee under the Indenture.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the parties hereto mutually covenant and agree as follows:
1. Pursuant to Section 6.11 of the Indenture, SSB, by virtue of its succession to the corporate trust business of FNBB, is the Successor Trustee under the Indenture.
2. SSB represents and warrants that (a) to the best of its knowledge, it is qualified under Section 310(b) of the Trust Indenture Act of 1939 and (b) it is eligible to serve as Successor Trustee under the provisions of Section 6.8 of the Indenture. SSB hereby accepts its appointment as Successor Trustee.
3. The Issuer hereby confirms the removal of the Original Trustee and the appointment of SSB as the Successor Trustee, and further confirms that all rights and powers of the trustee under the Indenture have vested in the Successor Trustee.
4. The definition of "Corporate Trust Office" in Section 1.1 of the Indenture shall be deleted and the following shall be added in its place:
"Corporate Trust Office" means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally administered, which office is currently located at Two International Place, Boston, Massachusetts 02110, Attn.: Corporate Trust Administration.
5. In all other ways the Indenture is hereby ratified and confirmed.
THE PROGRESSIVE CORPORATION
By /s/ Charles B. Chokel
--------------------------------
Charles B. Chokel
Treasurer
[Corporate Seal]
Attest:
By /s/ David M. Schneider
-------------------------
David M. Schneider
Secretary
|
STATE STREET BANK AND TRUST
COMPANY
By /s/ Ruth A. Smith
-------------------------------
Ruth A. Smith
Assistant Vice President
[Corporate Seal]
Attest:
By /s/ Debra J. Gauthier
-------------------------
Debra J. Gauthier
Senior Account Administrator
|
STATE OF OHIO )
) ss.:
COUNTY OF CUYAHOGA )
|
On this 14th day of March, 1996, before me personally came Charles B. Chokel, to me personally known, who, being by me duly sworn, did depose and say that he is a resident of Cuyahoga County, Ohio; that he is an officer of THE PROGRESSIVE CORPORATION, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority.
/s/ Cynthia E. Barth
---------------------------------
Notary Public
My commission expires:
[Notarial Seal]
|
STATE OF MASSACHUSETTS )
) ss.:
COUNTY OF SUFFOLK )
|
On this 15th day of March, 1996, before me personally came Ruth A. Smith, to me personally known, who, being by me duly sworn, did depose and say that she is a resident of Norfolk County, Massachusetts; that she is an authorized officer of STATE STREET BANK AND TRUST COMPANY, one of the corporations described in and which executed the above instrument; that she knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that she signed her name thereto by like authority.
/s/ Cecil Gilbert
----------------------------------
Notary Public
My commission expires:
[Notarial Seal]
|
Exhibit 4.3
(Face of Security)
REGISTERED REGISTERED
No. ________ $___________
CUSIP
SEE REVERSE FOR CERTAIN DEFINITIONS
THE PROGRESSIVE CORPORATION
% [NOTE][DEBENTURE] DUE
THE PROGRESSIVE CORPORATION, an Ohio corporation (the "Issuer"), for value received, hereby promises to pay to
or registered assigns, at the office or agency of the Issuer at the office of the Trustee in Boston, Massachusetts, the principal sum of
dollars on , , in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest semiannually on and of each year, commencing on , , on said principal sum at said office or agency, in like coin or currency, at the rate per annum specified in the title of this , from the or the , as the case may be, next preceding the date of this to which interest has been paid, unless the date hereof is a date to which interest has been paid, in which case from the date of this , or unless no interest has been paid on the , in which case from , , until payment of said principal sum has been made or duly provided for; provided, that payment of interest may be made at the option of the Issuer by check mailed to the address of the person entitled thereto as such address shall appear on the Security Register. Notwithstanding the foregoing, if the date hereof is after the day of or , as the case may be, and before the following or , this shall bear interest from such or ; provided, that if the Issuer shall default in the payment of interest due on such or , then this shall bear interest from the next preceding or to which interest has been paid or, if no interest has been paid on this , from , . The interest so payable on any or will, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this is registered at the close of business on the or , as the case may be, next preceding such or .
Reference is made to the further provisions of this set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, The Progressive Corporation has caused this instrument to be signed by facsimile by its duly authorized officers and has caused a facsimile of its corporate seal to be affixed hereto or imprinted hereon.
THE PROGRESSIVE CORPORATION
[CORPORATE SEAL] By:
President and Chief Executive Officer
Attest:
Secretary
|
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated herein, referred to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY
as Trustee
By:
Authorized Signatory
(Back of Security)
THE PROGRESSIVE CORPORATION
% DUE
This is one of a duly authorized issue of debentures, notes, bonds or other evidences of indebtedness of the Issuer (hereinafter called the "Securities") of the series hereinafter specified, all issued or to be issued under and pursuant to an indenture dated as of September 15, 1993, as heretofore supplemented and amended (herein called the "Indenture"), between the Issuer and State Street Bank and Trust Company, as Trustee (herein called the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Issuer and the Holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any) and may otherwise vary as in the Indenture provided. This is one of a series designated as the % Due of the Issuer, limited in aggregate principal amount to $ .
In case an Event of Default, as defined in the Indenture, with respect to the % Due shall have occurred and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee, with the consent of the Holders of not less than 66 2/3 % in aggregate principal amount of the Securities at the time Outstanding (as defined in the Indenture) of all series to be affected (voting as one class), evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each such series; provided, however, that no such supplemental indenture shall (i) extend the final maturity of any Security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of any interest thereon, or impair or affect the rights of any Holder to institute suit for the payment thereof, without the consent of the Holder of each Security so affected or (ii) reduce the aforesaid percentage of Securities, the Holders of which are required to consent to any such supplemental indenture, without the consent of the Holder of each Security so affected. It is also provided in the Indenture that, with respect to certain defaults or Events of Default regarding the Securities of any series, prior to any declaration accelerating the maturity of such Securities, the Holders of a majority in aggregate principal amount Outstanding of the Securities of such series may on behalf of the Holders of all the Securities of such series waive any such past default or Event of Default and its consequences. The preceding sentence shall not, however, apply to a default in the payment of the principal of or premium, if any, or interest on any of the Securities. Any such consent or waiver by the Holder of this (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this and any which may be issued in exchange or substitution herefor, irrespective of whether or not any notation thereof is made upon this or such other .
No reference herein to the Indenture and no provision of this or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this in the manner, at the respective times, at the rate and in the
coin or currency herein prescribed.
The are issuable in registered form without coupons in denominations of $1,000 and any integral multiple of $1,000 at the office or agency of the Issuer at the office of the Trustee in Boston, Massachusetts, and in the manner and subject to the limitations provided in the Indenture, but
without the payment of any service charge. may be exchanged
for a like aggregate principal amount of of other authorized
denominations.
[The are not subject to redemption at the option of
the Issuer or through the operation of a sinking fund.]
|
Upon due presentment for registration of transfer of this at the office or agency of the Issuer at the office of the Trustee in Boston, Massachusetts, a new or of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer or the Trustee may deem and treat the registered Holder hereof as the absolute owner of this (whether or not this shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment of, or on account of, the principal hereof and, subject to the provisions on the face hereof, interest hereon, and for all other purposes, and neither the Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Issuer in the Indenture or any indenture supplemental thereto or in any , or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder, officer or director, as such, of the Issuer or of any successor corporation, either directly or through the Issuer or any successor corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall have the respective meanings assigned thereto in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties CUST - Custodian
JT TEN - as joint tenants with right of
survivorship and not as
tenants UNIF GIFT MIN ACT - Uniform Gifts
in common to Minors Act
_______________
(State)
|
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Dated:___________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument in
every particular, without alteration or
enlargement or any change whatever.
|
Exhibit 5
BAKER & HOSTETLER
1900 E. NINTH STREET
CLEVELAND, OH 44114-3485
March 15, 1996
The Progressive Corporation
6300 Wilson Mills Road
Mayfield Village, Ohio 44143
Re: Registration Statement on Form S-3 with respect to $200,000,000 aggregate principal amount of Debt Securities of The Progressive Corporation
Dear Sirs:
We have acted as counsel to The Progressive Corporation, an Ohio corporation (the "Company"), in connection with its Registration Statement on Form S-3 (the "Registration Statement") being filed under the Securities Act of 1933, as amended (the "Act"), relating to the proposed public offering of up to $200,000,000 aggregate principal amount of the Company's Debt Securities (the "Securities") to be issued under an Indenture dated as of September 15, 1993 (the "Indenture") between the Company and State Street Bank and Trust Company, as trustee.
We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents as we have deemed necessary for the purposes of rendering this opinion including, without limitation, copies of resolutions adopted by the Board of Directors, the Articles of Incorporation, as amended, and Code of Regulations, of the Company, the Indenture, and the forms of Underwriting Agreement and Debt Security filed as exhibits to the Registration Statement. In our examination, we have assumed that the Indenture has been duly executed and delivered.
Based upon the foregoing, we are of the opinion that:
When (a) the Securities in substantially the form filed as Exhibit 4.3 to the Registration Statement shall have been duly executed and authenticated in accordance with the terms of the Indenture, (b) the Indenture shall have been qualified under the Trust Indenture Act of 1939 and (c) the Securities shall have been issued and sold as described in the Registration Statement,
The Progressive Corporation
March 15, 1996
and if in an underwritten offering, in accordance with the terms and conditions of an Underwriting Agreement substantially in the form of Exhibit 1 to the Registration Statement with the blanks appropriately filled in, and in a manner contemplated in the Registration Statement, including the Prospectus Supplement relating to any Securities, the Securities will be duly authorized and valid and binding obligations of the Company, except as may be limited by bankruptcy, insolvency, reorganization or other laws relating to the enforcement of creditors' rights generally or by general principles of equity.
We hereby consent to the use of this opinion as an exhibit to the Registration Statement and to the reference to our firm under "Legal Matters" in the prospectus included in the Registration Statement.
Very truly yours,
/s/ Baker & Hostetler |
Exhibit 12.1
THE PROGRESSIVE CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
YEARS ENDED DECEMBER 31,
--------------------------------------------------------------
1995 1994 1993 1992 1991
---- ---- ---- ---- ----
(DOLLARS IN MILLIONS)
Income before
income taxes and
cumulative effect
of accounting
change (1) $345.9 $379.8 $373.1 $178.7 $32.9
------ ------ ------ ------ -----
Fixed charges:
Interest and
amortization
on indebtedness 57.1 56.9 42.4 44.8 47.8
Portion of rents
representative
of the
interest
factor 4.2 3.1 3.0 4.6 5.1
------ ------ ------ ------ -----
Total fixed charges 61.3 60.0 45.4 49.4 52.9
------ ------ ------ ------ -----
Total income
available for
fixed charges (2) $407.2 $438.2 $415.8 $227.8 $85.8
====== ====== ====== ====== =====
Ratio of earnings
to fixed charges 6.6 7.3 9.2 4.6 1.6
====== ====== ====== ====== =====
|
(1) 1992 results include the cumulative effect of an accounting change due to the adoption of Statement of Financial Accounting Standards 109, "Accounting for Income Taxes."
(2) Excludes interest capitalized of $1.6 million, $2.7 million and $.3 million for the years ended December 31, 1994, 1993 and 1992, respectively. No interest was capitalized in 1995 or 1991.
Exhibit 12.2
THE PROGRESSIVE CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED SHARE DIVIDEND REQUIREMENTS
YEARS ENDED DECEMBER 31,
---------------------------------------------------------
1995 1994 1993 1992 1991
---- ---- ---- ---- ----
(DOLLARS IN MILLIONS)
Income before income
taxes and cumulative effect
of accounting change (1) $345.9 $379.8 $373.1 $178.7 $ 32.9
------ ------ ------ ------ ------
Fixed charges:
Interest and amortization
on indebtedness 57.1 56.9 42.4 44.8 47.8
Portion of rents representative
of the interest factor 4.2 3.1 3.0 4.6 5.1
------ ------ ------ ------ ------
Total fixed charges 61.3 60.0 45.4 49.4 52.9
------ ------ ------ ------ ------
Preferred share dividend
requirements 11.5 11.7 12.8 12.0 5.8
------ ------- ------- ------ ------
Total fixed charges and
preferred share dividend
requirements 72.8 71.7 58.2 61.4 58.7
------ ------ ------ ------ ------
Total income available for fixed
charges and preferred share
dividend requirements (2) $407.2 $438.2 $415.8 $227.8 $ 85.8
====== ====== ====== ====== ======
Ratio of earnings to combined
fixed charges and preferred
share dividend requirements 5.6 6.1 7.1 3.7 1.5
====== ====== ====== ====== ======
|
(1) 1992 results include the cumulative effect of an accounting change due to the adoption of Statement of Financial Accounting Standards 109, "Accounting for Income Taxes."
(2) Excludes interest capitalized of $1.6 million, $2.7 million and $.3 million for the years ended December 31, 1994, 1993 and 1992, respectively, as well as preferred share dividend requirements for all periods presented. No interest was capitalized in 1995 or 1991.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders, The Progressive Corporation:
We consent to the incorporation by reference in the Registration Statement of The Progressive Corporation on Form S-3 of our reports dated January 24, 1996, on our audits of the consolidated financial statements and financial statement schedules of The Progressive Corporation and subsidiaries (the "Company") as of December 31, 1995 and 1994, and for each of the three years in the period ended December 31, 1995, which reports are included in the Company's Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
Cleveland, Ohio
March 14, 1996
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT: The undersigned officer and/or director of The Progressive Corporation, an Ohio corporation (the "Company") has made, constituted and appointed, and by this instrument does make, constitute and appoint, Jeffrey W. Basch, Charles B. Chokel, R. Steven Kestner, David M. Schneider and Dane A. Shrallow, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to affix for him and in his name, place and stead, in any and all capacities, as attorney-in-fact and agent, his signature to a Registration Statement on Form S-3 or other form in order to register under the Securities Act of 1933, as amended, up to $200 million aggregate principal amount of notes, debentures or other debt securities of the Company containing such terms and provisions as the Board of Directors of the Company, or the Executive Committee thereof, may specify, and to any and all amendments, post-effective amendments, supplements and exhibits to such Registration Statement, and to any and all applications, instruments and/or other documents pertaining thereto, giving and granting to each such attorney-in-fact and agent full power and authority to do and perform any and all acts and things whatsoever necessary or appropriate to be done in and about the premises, as fully for all intents and purposes as he might or could do if personally present, and hereby ratifying and confirming all that each such attorney-in-fact and agent, or any such substitute or substitutes, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been executed by the undersigned, in the capacities and on the date set forth below.
Date: February 27, 1996 /s/ Peter B. Lewis
-----------------------------------
Peter B. Lewis
Chairman, President, Chief Executive Officer
and Director
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT: The undersigned officer and/or director of The Progressive Corporation, an Ohio corporation (the "Company") has made, constituted and appointed, and by this instrument does make, constitute and appoint, Jeffrey W. Basch, R. Steven Kestner, David M. Schneider and Dane A. Shrallow, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to affix for him and in his name, place and stead, in any and all capacities, as attorney-in-fact and agent, his signature to a Registration Statement on Form S-3 or other form in order to register under the Securities Act of 1933, as amended, up to $200 million aggregate principal amount of notes, debentures or other debt securities of the Company containing such terms and provisions as the Board of Directors of the Company, or the Executive Committee thereof, may specify, and to any and all amendments, post-effective amendments, supplements and exhibits to such Registration Statement, and to any and all applications, instruments and/or other documents pertaining thereto, giving and granting to each such attorney-in-fact and agent full power and authority to do and perform any and all acts and things whatsoever necessary or appropriate to be done in and about the premises, as fully for all intents and purposes as he might or could do if personally present, and hereby ratifying and confirming all that each such attorney-in-fact and agent, or any such substitute or substitutes, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been executed by the undersigned, in the capacities and on the date set forth below.
Date: February 22, 1996 /s/ Charles B. Chokel
----------------------------------
Charles B. Chokel
Treasurer and Chief Financial Officer
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT: The undersigned officer and/or director of The Progressive Corporation, an Ohio corporation (the "Company") has made, constituted and appointed, and by this instrument does make, constitute and appoint, Charles B. Chokel, R. Steven Kestner, David M. Schneider and Dane A. Shrallow, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to affix for him and in his name, place and stead, in any and all capacities, as attorney-in-fact and agent, his signature to a Registration Statement on Form S-3 or other form in order to register under the Securities Act of 1933, as amended, up to $200 million aggregate principal amount of notes, debentures or other debt securities of the Company containing such terms and provisions as the Board of Directors of the Company, or the Executive Committee thereof, may specify, and to any and all amendments, post-effective amendments, supplements and exhibits to such Registration Statement, and to any and all applications, instruments and/or other documents pertaining thereto, giving and granting to each such attorney-in-fact and agent full power and authority to do and perform any and all acts and things whatsoever necessary or appropriate to be done in and about the premises, as fully for all intents and purposes as he might or could do if personally present, and hereby ratifying and confirming all that each such attorney-in-fact and agent, or any such substitute or substitutes, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been executed by the undersigned, in the capacities and on the date set forth below.
Date: February 27, 1996 /s/ Jeffrey W. Basch
--------------------------------
Jeffrey W. Basch
Chief Accounting Officer
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT: The undersigned officer and/or director of The Progressive Corporation, an Ohio corporation (the "Company") has made, constituted and appointed, and by this instrument does make, constitute and appoint, Jeffrey W. Basch, Charles B. Chokel, R. Steven Kestner and Dane A. Shrallow, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to affix for him and in his name, place and stead, in any and all capacities, as attorney-in-fact and agent, his signature to a Registration Statement on Form S-3 or other form in order to register under the Securities Act of 1933, as amended, up to $200 million aggregate principal amount of notes, debentures or other debt securities of the Company containing such terms and provisions as the Board of Directors of the Company, or the Executive Committee thereof, may specify, and to any and all amendments, post-effective amendments, supplements and exhibits to such Registration Statement, and to any and all applications, instruments and/or other documents pertaining thereto, giving and granting to each such attorney-in-fact and agent full power and authority to do and perform any and all acts and things whatsoever necessary or appropriate to be done in and about the premises, as fully for all intents and purposes as he might or could do if personally present, and hereby ratifying and confirming all that each such attorney-in-fact and agent, or any such substitute or substitutes, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been executed by the undersigned, in the capacities and on the date set forth below.
Date: February 22, 1996 /s/ David M. Schneider
--------------------------------
David M. Schneider
Secretary
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT: The undersigned officer and/or director of The Progressive Corporation, an Ohio corporation (the "Company") has made, constituted and appointed, and by this instrument does make, constitute and appoint, Jeffrey W. Basch, Charles B. Chokel, R. Steven Kestner, David M. Schneider and Dane A. Shrallow, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to affix for him and in his name, place and stead, in any and all capacities, as attorney-in-fact and agent, his signature to a Registration Statement on Form S-3 or other form in order to register under the Securities Act of 1933, as amended, up to $200 million aggregate principal amount of notes, debentures or other debt securities of the Company containing such terms and provisions as the Board of Directors of the Company, or the Executive Committee thereof, may specify, and to any and all amendments, post-effective amendments, supplements and exhibits to such Registration Statement, and to any and all applications, instruments and/or other documents pertaining thereto, giving and granting to each such attorney-in-fact and agent full power and authority to do and perform any and all acts and things whatsoever necessary or appropriate to be done in and about the premises, as fully for all intents and purposes as he might or could do if personally present, and hereby ratifying and confirming all that each such attorney-in-fact and agent, or any such substitute or substitutes, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been executed by the undersigned, in the capacities and on the date set forth below.
Date: February 26, 1996 /s/ Milton N. Allen
---------------------------
Milton N. Allen
Director
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT: The undersigned officer and/or director of The Progressive Corporation, an Ohio corporation (the "Company") has made, constituted and appointed, and by this instrument does make, constitute and appoint, Jeffrey W. Basch, Charles B. Chokel, R. Steven Kestner, David M. Schneider and Dane A. Shrallow, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to affix for him and in his name, place and stead, in any and all capacities, as attorney-in-fact and agent, his signature to a Registration Statement on Form S-3 or other form in order to register under the Securities Act of 1933, as amended, up to $200 million aggregate principal amount of notes, debentures or other debt securities of the Company containing such terms and provisions as the Board of Directors of the Company, or the Executive Committee thereof, may specify, and to any and all amendments, post-effective amendments, supplements and exhibits to such Registration Statement, and to any and all applications, instruments and/or other documents pertaining thereto, giving and granting to each such attorney-in-fact and agent full power and authority to do and perform any and all acts and things whatsoever necessary or appropriate to be done in and about the premises, as fully for all intents and purposes as he might or could do if personally present, and hereby ratifying and confirming all that each such attorney-in-fact and agent, or any such substitute or substitutes, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been executed by the undersigned, in the capacities and on the date set forth below.
Date: February 28, 1996 /s/ B. Charles Ames
---------------------------------
B. Charles Ames
Director
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT: The undersigned officer and/or director of The Progressive Corporation, an Ohio corporation (the "Company") has made, constituted and appointed, and by this instrument does make, constitute and appoint, Jeffrey W. Basch, Charles B. Chokel, R. Steven Kestner, David M. Schneider and Dane A. Shrallow, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to affix for him and in his name, place and stead, in any and all capacities, as attorney-in-fact and agent, his signature to a Registration Statement on Form S-3 or other form in order to register under the Securities Act of 1933, as amended, up to $200 million aggregate principal amount of notes, debentures or other debt securities of the Company containing such terms and provisions as the Board of Directors of the Company, or the Executive Committee thereof, may specify, and to any and all amendments, post-effective amendments, supplements and exhibits to such Registration Statement, and to any and all applications, instruments and/or other documents pertaining thereto, giving and granting to each such attorney-in-fact and agent full power and authority to do and perform any and all acts and things whatsoever necessary or appropriate to be done in and about the premises, as fully for all intents and purposes as he might or could do if personally present, and hereby ratifying and confirming all that each such attorney-in-fact and agent, or any such substitute or substitutes, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been executed by the undersigned, in the capacities and on the date set forth below.
Date: February 27, 1996 /s/ Stephen R. Hardis
------------------------------
Stephen R. Hardis
Director
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT: The undersigned officer and/or director of The Progressive Corporation, an Ohio corporation (the "Company") has made, constituted and appointed, and by this instrument does make, constitute and appoint, Jeffrey W. Basch, Charles B. Chokel, R. Steven Kestner, David M. Schneider and Dane A. Shrallow, and each of them, her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to affix for her and in her name, place and stead, in any and all capacities, as attorney-in-fact and agent, her signature to a Registration Statement on Form S-3 or other form in order to register under the Securities Act of 1933, as amended, up to $200 million aggregate principal amount of notes, debentures or other debt securities of the Company containing such terms and provisions as the Board of Directors of the Company, or the Executive Committee thereof, may specify, and to any and all amendments, post-effective amendments, supplements and exhibits to such Registration Statement, and to any and all applications, instruments and/or other documents pertaining thereto, giving and granting to each such attorney-in-fact and agent full power and authority to do and perform any and all acts and things whatsoever necessary or appropriate to be done in and about the premises, as fully for all intents and purposes as she might or could do if personally present, and hereby ratifying and confirming all that each such attorney-in-fact and agent, or any such substitute or substitutes, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been executed by the undersigned, in the capacities and on the date set forth below.
Date: February 26, 1996 /s/ Janet Hill
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Janet Hill
Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT: The undersigned officer and/or director of The Progressive Corporation, an Ohio corporation (the "Company") has made, constituted and appointed, and by this instrument does make, constitute and appoint, Jeffrey W. Basch, Charles B. Chokel, R. Steven Kestner, David M. Schneider and Dane A. Shrallow, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to affix for him and in his name, place and stead, in any and all capacities, as attorney-in-fact and agent, his signature to a Registration Statement on Form S-3 or other form in order to register under the Securities Act of 1933, as amended, up to $200 million aggregate principal amount of notes, debentures or other debt securities of the Company containing such terms and provisions as the Board of Directors of the Company, or the Executive Committee thereof, may specify, and to any and all amendments, post-effective amendments, supplements and exhibits to such Registration Statement, and to any and all applications, instruments and/or other documents pertaining thereto, giving and granting to each such attorney-in-fact and agent full power and authority to do and perform any and all acts and things whatsoever necessary or appropriate to be done in and about the premises, as fully for all intents and purposes as he might or could do if personally present, and hereby ratifying and confirming all that each such attorney-in-fact and agent, or any such substitute or substitutes, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been executed by the undersigned, in the capacities and on the date set forth below.
Date: February 26, 1996 /s/ Norman S. Matthews
------------------------------------
Norman S. Matthews
Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT: The undersigned officer and/or director of The Progressive Corporation, an Ohio corporation (the "Company") has made, constituted and appointed, and by this instrument does make, constitute and appoint, Jeffrey W. Basch, Charles B. Chokel, R. Steven Kestner, David M. Schneider and Dane A. Shrallow, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to affix for him and in his name, place and stead, in any and all capacities, as attorney-in-fact and agent, his signature to a Registration Statement on Form S-3 or other form in order to register under the Securities Act of 1933, as amended, up to $200 million aggregate principal amount of notes, debentures or other debt securities of the Company containing such terms and provisions as the Board of Directors of the Company, or the Executive Committee thereof, may specify, and to any and all amendments, post-effective amendments, supplements and exhibits to such Registration Statement, and to any and all applications, instruments and/or other documents pertaining thereto, giving and granting to each such attorney-in-fact and agent full power and authority to do and perform any and all acts and things whatsoever necessary or appropriate to be done in and about the premises, as fully for all intents and purposes as he might or could do if personally present, and hereby ratifying and confirming all that each such attorney-in-fact and agent, or any such substitute or substitutes, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been executed by the undersigned, in the capacities and on the date set forth below.
Date: March 5, 1996 /s/ Paul B. Sigler
--------------------------------
Paul B. Sigler
Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT: The undersigned officer and/or director of The Progressive Corporation, an Ohio corporation (the "Company") has made, constituted and appointed, and by this instrument does make, constitute and appoint, Jeffrey W. Basch, Charles B. Chokel, R. Steven Kestner, David M. Schneider and Dane A. Shrallow, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to affix for him and in his name, place and stead, in any and all capacities, as attorney-in-fact and agent, his signature to a Registration Statement on Form S-3 or other form in order to register under the Securities Act of 1933, as amended, up to $200 million aggregate principal amount of notes, debentures or other debt securities of the Company containing such terms and provisions as the Board of Directors of the Company, or the Executive Committee thereof, may specify, and to any and all amendments, post-effective amendments, supplements and exhibits to such Registration Statement, and to any and all applications, instruments and/or other documents pertaining thereto, giving and granting to each such attorney-in-fact and agent full power and authority to do and perform any and all acts and things whatsoever necessary or appropriate to be done in and about the premises, as fully for all intents and purposes as he might or could do if personally present, and hereby ratifying and confirming all that each such attorney-in-fact and agent, or any such substitute or substitutes, shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been executed by the undersigned, in the capacities and on the date set forth below.
Date: February 27, 1996 /s/ Donald B. Shackelford
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Donald B. Shackelford
Director
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Exhibit 24.2
THE PROGRESSIVE CORPORATION
CERTIFIED COPY OF RESOLUTIONS
I. Debt Securities
RESOLVED: that the Company is hereby authorized to create, issue and sell in one or more underwritten public offerings or otherwise one or more series of notes, debentures or other form of debt securities, pursuant to one or more indentures as described below (the "Debt Securities"), such Debt Securities to be designated, to be issued and sold at such times, in such forms and in such principal amounts, to be for such terms, to be payable on such dates, to bear interest at such rates per annum and be payable at such times, and to have such other terms, provisions and conditions as may be determined and approved by the Executive Committee of the Board of Directors as provided below; provided, however, that the aggregate principal amount of all Debt Securities issued pursuant to these resolutions shall not exceed Two Hundred Million Dollars ($200,000,000);
RESOLVED: that, subject to the foregoing limitations and notwithstanding anything to the contrary contained in the succeeding resolutions, the Executive Committee shall have all requisite authority, for and on behalf of the Company, to establish the following terms, provisions and conditions with respect to the Debt Securities of any series and the issuance and sale thereof:
(i) the types of Debt Securities to be issued and the titles and designations of the same;
(ii) the time or times as of which each series of Debt Securities shall be issued;
(iii) the aggregate principal amount of each series of Debt Securities to be issued, subject to the aggregate limit set forth above;
(iv) the identity of the managing or lead underwriter or underwriters, if any, in connection with any such sale of Debt Securities and the identity of the trustee(s) of one or more indentures as described below;
(v) the prices at which the Debt Securities of each series are to be sold, the amount of any discounts to be given and/or commissions, fees or other sums to be paid to underwriters, trustees or others by the Company in conjunction therewith and the amount of fees to be paid by the Company in conjunction with any delayed delivery contracts;
(vi) the maturity or maturities of each series of Debt Securities;
(vii) the rate or rates of interest to be borne by each series of Debt Securities to be issued, which rate or rates may
vary from time to time in accordance with a method or formula approved by the Executive Committee;
(viii) the date or dates on which such interest shall begin to accrue, the period or periods for which interest shall accrue, the date or dates on which such interest shall be payable, and the record date for the interest payable on any interest payment date;
(ix) the period or periods within which, the prices at which, and the terms and conditions upon which each series of Debt Securities may be redeemed, in whole or in part, at the option of the Company;
(x) the obligation, if any, of the Company to redeem or purchase any series of Debt Securities pursuant to any sinking fund or analogous provisions or at the option of a holder thereof, and the period or periods within which, the price or prices at which and terms and conditions upon which any series of Debt Securities shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(xi) the denominations in which each series of Debt Securities shall be issuable;
(xii) if other than the principal amount thereof, the portion of the principal amount of each series of Debt Securities which shall be payable upon a declaration of acceleration of the maturity thereof;
(xiii) the affirmative and negative covenants, if any, to be observed by the Company in conjunction with each series of Debt Securities;
(xiv) the form of each series of Debt Securities;
(xv) the authenticating or paying agents, transfer agents or registrars with respect to any series of Debt Securities; and
(xvi) such other terms, conditions and provisions relating to any series of the Debt Securities as the Executive Committee shall deem appropriate; and
RESOLVED: that the terms, provisions and conditions applicable to the Debt Securities of any series, and the sale thereof, shall be established by the Executive Committee by and set forth in resolutions of such Committee and, if the Executive Committee in its sole discretion shall direct, may be set forth in any indenture or supplemental indenture authorized hereinbelow;
RESOLVED: that, in conjunction with the creation, issuance and sale of any series of Debt Securities, the President and Treasurer of the Company be, and each of them with full power to act without the others is, hereby authorized and empowered to execute the Debt Securities (and, in addition, Debt Securities to replace lost,
stolen, mutilated or destroyed Debt Securities and Debt Securities, if any, required for exchange, all as provided in the applicable Indenture), such execution to be in the name and on behalf of the Company and under its corporate seal attested by the Secretary or an Assistant Secretary of the Company, with each series of such Debt Securities to be in such form and to contain such terms, provisions and conditions as may be approved by the Executive Committee, to deliver such Debt Securities to the Trustee for authentication and delivery pursuant to the applicable Indenture and to otherwise cause the issuance, sale, authentication and delivery of the Debt Securities;
RESOLVED: that the signatures of the officers of the Company so authorized to execute the Debt Securities may, but need not be, the facsimile signatures of such authorized officers imprinted or otherwise reproduced thereon, the Company for such purpose hereby adopting each such facsimile signature as binding upon it, notwithstanding the fact that at the time any Debt Security shall be authenticated and delivered or disposed of the officer so signing shall have ceased to be such authorized officer;
II. Registration Statements
RESOLVED: that the President, Treasurer and Secretary of the Company be, and each of them with full power to act without the others is, hereby authorized and empowered, for and on behalf of the Company, to prepare or cause to be prepared, and to execute and file or cause to be executed and filed with the Securities and Exchange Commission (the "Commission"), under the Securities Act of 1933, as amended (the "Act"), one or more Registration Statements on Form S-3, or such other available form or forms as may be approved by any of such officers (including one or more prospectuses, prospectus supplements, pricing supplements, all exhibits and other documents relating thereto), (collectively, the "Registration Statement") with respect to the Debt Securities to be sold in one or more series by the Company to or through such underwriter(s) or other purchasers as the Executive Committee may select, on a delayed or continuous basis pursuant to Rule 415 under the Act or otherwise; and
RESOLVED: that the President, Treasurer and Secretary of the Company be, and each of them with full power to act without the others is, hereby authorized and empowered, for and on behalf of the Company, to prepare or cause to be prepared and to execute or cause to be executed such amendments (including post-effective amendments) and supplements to the Registration Statement as they, or any of them, may deem necessary or desirable, or as may be required by the Commission; to cause such amendments and supplements, when duly executed (if required), to be filed with the Commission; to qualify the Indentures, as hereinafter defined, including any and all amendments and supplements thereto, under the Trust Indenture Act of 1939, as amended; and to do all such other acts and things and to execute and deliver all such other documents as they, or any of them, may deem necessary or desirable in order to cause the Registration Statement to comply with the Act and the rules and regulations promulgated by the Commission
thereunder (the "Rules and Regulations"), and to become effective under the Act and the Rules and Regulations; and
RESOLVED: that when the registration of the Debt Securities pursuant to the Registration Statement has become effective with the Commission, the President, Treasurer and Secretary of the Company be, and each of them with full power to act without the others is, hereby authorized and directed, for and on behalf of the Company, to execute, deliver and file any and all documents, and to do any and all acts and things, as may be necessary or proper in connection with the issuance and/or sale of the Debt Securities as hereinabove authorized; and
RESOLVED: that David M. Schneider, or such other individual as shall hereafter be named by the Executive Committee and designated to the Commission in his stead, is hereby named as the person authorized to receive service of all notices, orders, communications and other documents which may be issued or sent by the Commission in connection with the Registration Statement and any and all amendments and supplements thereto, with all the powers consequent upon such designation under the Rules and Regulations; and
RESOLVED: that any director or officer of the Company required by law or authorized herein to affix his signature to the Registration Statement, and any and all amendments and supplements thereto, may affix his signature personally, or by any attorney-in-fact duly constituted in writing by said director or officer to sign his name thereto; and
RESOLVED: that Jeffrey W. Basch, Charles B. Chokel, R. Steven Kestner, David M. Schneider and Dane A. Shrallow be, and each of them hereby is, appointed as the attorney-in-fact and agent of the Company, with full power of substitution and resubstitution, for and in the name, place and stead of the Company to sign, attest and file the Registration Statement, and any and all amendments or supplements thereto and any and all applications or other documents to be filed with the Commission in connection therewith and any and all applications or other documents to be filed with any governmental or private agency or official relative to the issuance and sale of Debt Securities, with full power and authority to do and perform any and all acts and things whatsoever requisite and necessary to be done in the premises, hereby ratifying and approving the acts of such attorneys or any such substitute or substitutes and, without implied limitation, including in the above the authority to do the foregoing things on behalf of the Company in the name of the person so acting or on behalf and in the name of any duly authorized officer of the Company; and the President, Treasurer and Secretary be, and each hereby is, authorized and directed, for an on behalf of the Company, to execute and deliver a Power of Attorney evidencing the foregoing appointment; and
RESOLVED: that Jeffrey W. Basch, Charles B. Chokel, R. Steven Kestner, David M. Schneider and Dane A. Shrallow be, and each of them with full power to act without the others is, hereby authorized to sign the Registration Statement and any and all
amendments and supplements to the Registration Statement, on behalf of and as attorneys-in-fact for the principal executive officer, principal accounting officer, principal financial officer or any other officer of the Company, including, without limitation, the President, Treasurer and Secretary, and on behalf of and as attorneys-in-fact for each director of the Company; and
RESOLVED: that each of the officers of the Company and its attorneys-in-fact, Messrs. Jeffrey W. Basch, Charles B. Chokel, R. Steven Kestner, David M. Schneider and Dane A. Shrallow, be, and each of them with full power to act without the others is, hereby authorized to appear on behalf of the Company before the Commission in connection with any matters relating to the Registration Statement and all amendments or supplements thereto; and
III. Indentures
RESOLVED: that, the Debt Securities of any series issued pursuant to the authority granted hereunder shall be issued pursuant to, and shall in all respects be subject to all of the terms, provisions and conditions of, that certain indenture dated as of September 15, 1993 ("1993 Indenture") between the Company and State Street Bank and Trust Company ("SSBT"), as successor to The First National Bank of Boston, as trustee, or, if so authorized and directed by the Executive Committee, another indenture as authorized below; and
RESOLVED: that, with respect to each series of Debt Securities, the President, Treasurer and Secretary be, and each of them with full power to act without the others is, hereby authorized and empowered, for and on behalf of the Company, to prepare or cause to be prepared, and to execute and deliver one or more supplemental indentures to the 1993 Indenture or any other indenture of the Company, or one or more new or additional indentures, including any and all supplements and amendments thereto, with SSBT or such other trustee as may be designated by the Executive Committee (the "Trustee"), such indentures, supplemental indentures or amendments to be in such form or forms as any of the foregoing officers shall approve and may set forth, among other things, the terms and conditions upon which (i) the Debt Securities are to be authenticated, issued and delivered; (ii) principal of, premium, if any, and interest on the Debt Securities is to be paid; and (iii) the Debt Securities may be called or redeemed, and such other and further provisions as shall be authorized or approved, as herein provided; and
RESOLVED: that the Executive Committee is hereby authorized
and empowered to (i) select and appoint the trustee under any
such new or additional indenture, and the person or persons
who will serve as paying agent and registrar or co-registrars
of the Debt Securities of any series under each indenture, and
(ii) select the offices or agencies of the Company where Debt
Securities of any series may be presented for payment and
where legal process, notices and demands to or upon the
Company with respect to any indenture or the Debt Securities
may be served, given or made, and select the offices or
agencies of the Company where the Debt
Securities of any series may be presented for registration, transfer and exchange; and that the execution and delivery of any indenture or other instrument providing for the appointment of, or appointing, any such trustee, paying agent, registrar or co-registrar and/or specifying any such office or agency, by any of such officer(s), shall be conclusive evidence of all requisite approvals by the Company;
RESOLVED: that the officers of the Company be, and each of them with full power to act without the others is, hereby authorized and empowered to do and perform all such acts and things and to execute and deliver, in the name of the Company or otherwise and on behalf of the Company, any and all such certificates, instruments, documents, reports and statements as may be required by or otherwise provided for under the 1993 Indenture or any other indenture or the Debt Securities of any series, or as shall otherwise be necessary or desirable in order to ensure the Company's continued compliance with all the provisions and requirements of each such indenture and the Debt Securities, to effect the issuance and sale of the Debt Securities and to carry out the terms and provisions of the Debt Securities and each such indenture; and
IV. Selling Arrangements
RESOLVED: that the Company be, and it hereby is, authorized to sell all or any portion of the Debt Securities to or through one or more underwriters, as selected by the Executive Committee, acting alone or together or as representatives of a group of underwriters, and/or to sell all or a portion of the Debt Securities directly to other purchasers or through agents or dealers, with all such sales to be made pursuant to one or more underwriting, purchase and/or delayed delivery agreements (the "Selling Documents"); and
RESOLVED: that, in conjunction with each sale of Debt Securities by the Company, the President, Treasurer and Secretary of the Company be, and each of them with full power to act without the others is, hereby authorized to execute, in the name and on behalf of the Company, one or more Selling Documents providing for the sale by the Company of all or a portion of the Debt Securities, with each such Selling Document to be executed at such time and in such number of counterparts and to be in such form and contain such terms, provisions and conditions as may be approved by the officer(s) of the Company executing the same, the execution of any such Selling Document by any such officer(s) to be conclusive evidence of all requisite approvals, and to cause the delivery of each Selling Document to be made at such time as may be approved by the officer(s) executing the same; and
V. New York Stock Exchange Listing; Securities Exchange Act of 1934
RESOLVED: that the Company is hereby authorized to make one or more applications to the New York Stock Exchange, Inc. for the listing of one or more series of Debt Securities on said Exchange, upon official notice of issuance and satisfactory evidence of distribution, and that the officers of the Company and its attorneys-in-fact, Messrs. Jeffrey W. Basch, Charles B. Chokel, R. Steven Kestner, David M. Schneider and Dane A. Shrallow be, and each of them with full power to act without the others is, hereby authorized, at such times as the Executive Committee may direct, to make application for such listings and, in connection therewith, to execute, in the name and on behalf of the Company, and under its corporate seal or otherwise, and to file or deliver all such applications, statements, certificates, agreements and other instruments and documents as shall be necessary or desirable to accomplish such listings, with authority to make such changes in any such listing application or other documents and in any agreements that may be made in connection therewith as, in their or his discretion, may be necessary to comply with the requirements for or to otherwise obtain such listing; and that such officers and attorneys be, and each of them with full power to act without the others is, hereby authorized to appear on behalf of the Company before the appropriate committee or body of the New York Stock Exchange, Inc., as such appearance may be required; and
RESOLVED: that in consideration of the New York Stock Exchange, Inc. not interposing any objection to the Company's employing the facsimile signatures of any one or more of its duly authorized officers in connection with the execution of the Debt Securities in the name and on behalf of the Company, the Company on behalf of itself, its successors and assigns, covenants and agrees that every innocent purchaser for value of any instrument which has been prepared by such printer or engraver as shall be approved in writing by the President, Treasurer or Secretary, in the form authorized by the Company for the Debt Securities and which bears the facsimile signatures of said duly authorized officers, or facsimile signatures resembling or purporting to be such facsimile signatures, and which has been manually authenticated by an authorized officer of the Trustee, may rely upon such facsimile signatures or any such facsimile signatures resembling or purporting to be such facsimile signatures, regardless of by whom or by what means the same may have been imprinted on said instrument and that any such facsimile signatures or any such facsimile signatures so relied on shall be as valid, effectual, conclusive and binding for all purposes upon the Company as if the same had in fact been executed manually for and on behalf of the Company by its proper officers thereunto duly authorized, and the Company hereby covenants and agrees to indemnify and hold harmless the New York Stock Exchange, Inc., its directors, officers, employees and its subsidiary companies and every such innocent purchaser for value from and against any and all loss, liability, claim, damages or expense, including costs, disbursements and counsel fees, arising out of any act done in reliance upon the authenticity of any such facsimile signatures when imprinted and
authenticated as aforesaid; and that the President, Treasurer and Secretary of the Company be, and each of them with full power to act without the others hereby is, authorized and directed to execute and deliver to the New York Stock Exchange, Inc. an Indemnity Agreement to substantially the foregoing effect;
RESOLVED: that the Company is hereby authorized to make one or more applications to the Commission for the registration of any series of Debt Securities under the Securities Exchange Act of 1934; and that the President, Treasurer and Secretary of the Company be, and each of them with full power to act without the others is, hereby authorized and empowered, at such times as to them shall seem advisable, to execute and file or deliver any and all such applications and other instruments and documents as shall be necessary to effect such registration; and
RESOLVED: that the President, Treasurer and Secretary of the Company and its attorneys-in-fact, Messrs. Jeffrey W. Basch, Charles B. Chokel, R. Steven Kestner, David M. Schneider and Dane A. Shrallow be, and each of them with full power to act without the others is, hereby authorized to appear on behalf of the Company before the Commission in connection with any matter relating to the registration of any series of the Debt Securities under the Securities Exchange Act of 1934;
VI. Blue Sky Qualification
RESOLVED: that the Debt Securities be qualified or registered for sale in various jurisdictions; that the President, Treasurer and Secretary of the Company be, and each of them with full power to act without the others is, hereby authorized to determine the jurisdictions in which appropriate action shall be taken to qualify or register for sale all or such part of the Debt Securities of the Company as said officer(s) may deem advisable; that each of said officers, with full power to act without the others, be and hereby is authorized to perform on behalf of the Company any and all such acts that he may deem necessary or advisable in order to comply with the applicable laws, regulations and other requirements of such jurisdictions in order to obtain a permit to issue and sell such Debt Securities, or to register or qualify such Debt Securities for issuance therein or to secure an appropriate exemption from such registration or qualification or to obtain a license for the Company as a dealer or broker under the securities laws of such jurisdictions as any such officer or officers may deem advisable, and, in connection therewith, to execute, acknowledge, verify, deliver, publish and file all requisite papers and documents, including, but not limited to, applications, reports, surety bonds, issuer's covenants, irrevocable consents to appointments of attorneys for service of process, powers of attorney and other papers and instruments and to take any and all further action, which they, or any of them, may deem necessary or advisable in order to maintain such permit, registration, qualification, exemption or license in effect for as long as they may deem to be in the best interests of the Company or as required by law; and the execution by any such officer or officers of any such papers or documents or the doing by any of them of any act in connection with the foregoing matters shall
conclusively establish their authority therefor from the Company and the approval and ratification by the Company of the papers and documents so executed and the action so taken; and
RESOLVED: that any partners or officers of any of the underwriters licensed in California as a broker-dealer be, and each such partner or officer hereby is, authorized for and on behalf of the Company to execute any necessary application for the registration or qualification of any Debt Securities under the securities laws of the State of California; and
RESOLVED: that the Company hereby adopts the form of any and all resolutions required by any state authority in connection with any such applications, reports, surety bonds, issuer's covenants, irrevocable consents to and appointments of attorneys for service of process, powers of attorney and other papers and instruments, if (1) in the opinion of the officer of the Company so acting the adoption of such resolutions is necessary or advisable and (2) the Secretary of the Company evidences such adoption by filing with the minutes of the Company copies of such resolutions, which shall thereupon be deemed to be adopted by the Company and incorporated into this resolution with the same force and effect as if expressly contained herein, and that the officer(s) of the Company take any and all further action which they or any of them may deem necessary or advisable in order to maintain such registration or qualification for sale in various jurisdictions in effect for as long as they may deem to be in the best interests of the Company; and
VII. Miscellaneous
RESOLVED: that, in addition to the authority granted by these resolutions to certain officers and other individuals to act on behalf of the Company, the President, Treasurer and Secretary of the Company be, and each of them with full power to act without the others is, hereby authorized to fix, modify and add to such terms, conditions and provisions of the Debt Securities, the indentures (including any amendments and supplemental indentures thereto), any underwriting, sales or delayed delivery agreement and other documents, and to authorize the execution and delivery of such other documents and the taking of such other actions (including filings with all necessary governmental or regulatory agencies), as any of such officers may deem necessary or desirable to effectuate the issuance and sale of the Debt Securities as contemplated in the foregoing resolutions;
RESOLVED: that the Board of Directors of the Company hereby adopts and incorporates by reference any form of specific resolution to carry into effect the purpose and intent of the foregoing resolutions, or covering authority included in matters authorized in the foregoing resolutions, including forms of resolutions in connection therewith that may be required by the Commission, the National Association of Securities Dealers, Inc., the New York Stock Exchange, Inc. and any state, institution, person or agency, if in the opinion of the officer of the Company so acting the adoption of such resolutions is necessary or advisable, and the Secretary of the Company is hereby directed to
insert a copy thereof in the minute book of the Company following the minutes of this meeting and certify the same as having been duly adopted thereby; and
RESOLVED: that any and all actions heretofore or hereafter taken by any officer or officers of the Company within the terms of the foregoing resolutions be and are hereby ratified and confirmed as the acts and deeds of the Company; and
RESOLVED: that the officers of the Company be, and each of them with full power to act without the others is, hereby authorized and directed to pay such fees and expenses and to execute and deliver such agreements, instruments and documents and to do all such other acts and things as they, or any of them, shall deem necessary or advisable to effectuate the transactions provided for herein in accordance with the purposes and intent of the foregoing resolutions.
I, David M. Schneider, do hereby certify that I am the duly elected, qualified and acting Secretary of The Progressive Corporation, an Ohio corporation (the "Company"); that I have custody of the official records of the Company; and that the foregoing is a true, correct, and complete copy of the resolutions duly adopted on the 26th day of February, 1996, by Written Action Taken Without a Meeting of the Board of Directors of the Company and that said resolutions are valid and binding, and have not been amended, modified or rescinded, and are in full force and effect on the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary and affixed the seal of the Company on the 15th day of March, 1996.
/s/ David M. Schneider
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SEAL David M. Schneider, Secretary
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Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) __
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
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John R. Towers, Esq. Senior Vice President and Corporate Secretary 225 Franklin Street, Boston, Massachusetts 02110 (617)654-3253
(Name, address and telephone number of agent for service)
THE PROGRESSIVE CORPORATION
(Exact name of obligor as specified in its charter)
OHIO 34-0963169
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6300 WILSON MILLS ROAD
MAYFIELD VILLAGE, OHIO 44143
(Address of principal executive offices) (Zip Code)
--------------------
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DEBT SECURITIES
(Title of indenture securities)
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its parent, State Street Boston Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN EFFECT.
A copy of the Articles of Association of the trustee, as now in effect, is on file with the Securities and Exchange Commission as Exhibit 1 to Amendment No. 1 to the Statement of Eligibility and Qualification of Trustee (Form T-1) filed with the Registration Statement of Morse Shoe, Inc. (File No. 22-17940) and is incorporated herein by reference thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of Massachusetts that no certificate of authority for the trustee to commence business was necessary or issued is on file with the Securities and Exchange Commission as Exhibit 2 to Amendment No. 1 to the Statement of Eligibility and Qualification of Trustee (Form T-1) filed with the Registration Statement of Morse Shoe, Inc. (File No. 22-17940) and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise corporate trust powers is on file with the Securities and Exchange Commission as Exhibit 3 to Amendment No. 1 to the Statement of Eligibility and Qualification of Trustee (Form T-1) filed with the Registration Statement of Morse Shoe, Inc. (File No. 22-17940) and is incorporated herein by reference thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on file with the Securities and Exchange Commission as Exhibit 4 to the Statement of Eligibility and Qualification of Trustee (Form T-1) filed with the Registration Statement of Eastern Edison Company (File No. 33-37823) and is incorporated herein by reference thereto.
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS IN DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(b) OF THE ACT.
The consent of the trustee required by Section 321(b) of the Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING AUTHORITY.
A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority is annexed hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility and Qualification which relates to matters peculiarly within the knowledge of the obligor or any underwriter for the obligor, the trustee has relied upon information furnished to it by the obligor and the underwriters, and the trustee disclaims responsibility for the accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if necessary, to reflect any facts which differ from those stated and which would have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, State Street Bank and Trust Company, a corporation organized and existing under the laws of The Commonwealth of Massachusetts, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Boston and The Commonwealth of Massachusetts, on the 12th day of March, 1996.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Ruth A. Smith
----------------------------
RUTH A. SMITH
ASSISTANT VICE PRESIDENT
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EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of 1939, as amended, in connection with the proposed issuance by The Progressive Corporation of its Debt Securities, we hereby consent that reports of examination by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Ruth A. Smith
---------------------------------
Ruth A. Smith
ASSISTANT VICE PRESIDENT
DATED: MARCH 12, 1996
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EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company of Boston, Massachusetts and foreign and domestic subsidiaries, a state banking institution organized and operating under the banking laws of this commonwealth and a member of the Federal Reserve System, at the close of business December 31, 1995, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act and in accordance with a call made by the Commissioner of Banks under General Laws, Chapter 172, Section 22(a).
Thousands of
Dollars
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ....... 1,331,827
Interest-bearing balances ................................ 5,971,326
Securities ........................................................ 6,325,054
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary ...................... 5,436,994
Loans and lease financing receivables:
Loans and leases, net of unearned income .... 4,308,339
Allowance for loan and lease losses ......... 63,491
Loans and leases, net of unearned income and allowances .. 4,244,848
Assets held in trading accounts ................................... 1,042,846
Premises and fixed assets ......................................... 374,362
Other real estate owned ........................................... 3,223
Investments in unconsolidated subsidiaries ........................ 31,624
Customers' liability to this bank on acceptances outstanding ...... 57,472
Intangible assets ................................................. 68,384
Other assets ...................................................... 670,058
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Total assets ...................................................... 25,558,018
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LIABILITIES
Deposits:
In domestic offices ...................................... 6,880,231
Noninterest-bearing ................ 4,728,115
Interest-bearing ................... 2,152,116
In foreign offices and Edge subsidiary ................... 9,607,427
Noninterest-bearing ................ 28,265
Interest-bearing ................... 9,579,162
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary ...................... 5,913,969
Demand notes issued to the U.S. Treasury and Trading Liabilities .. 530,406
Other borrowed money .............................................. 493,191
Bank's liability on acceptances executed and outstanding .......... 57,387
Other liabilities ................................................. 620,287
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Total liabilities ................................................. 24,102,898
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EQUITY CAPITAL
Common stock ...................................................... 29,176
Surplus ........................................................... 228,448
Undivided profits ................................................. 1,197,496
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Total equity capital .............................................. 1,455,120
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Total liabilities and equity capital .............................. 25,558,018
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I, Rex S. Schuette, Senior Vice President and Comptroller of the above named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true and correct.
David A. Spina Marshall N. Carter Charles F. Kaye