As filed with the Securities and Exchange Commission on December 27, 2012
Registration No.
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
THE PROGRESSIVE CORPORATION
(Exact name of registrant as specified in its charter)
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OHIO
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34-0963169
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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6300 Wilson Mills Road, Mayfield Village, Ohio 44143
(Address of Principal Executive Offices) (Zip Code)
THE PROGRESSIVE CORPORATION
EXECUTIVE DEFERRED COMPENSATION PLAN
(Full title of the plan)
Charles E. Jarrett, Secretary
The Progressive Corporation
6300 Wilson Mills Road
Mayfield Village, Ohio 44143
(Name and address of agent for service)
(440) 461-5000
(Telephone number, including area code, of agent for service)
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting
company” in Rule 12b2 of the Exchange Act.
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Large accelerated filer
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þ
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Accelerated filer
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¨
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of Securities to
be
registered
1
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Amount to be
registered
2
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Proposed maximum
offering price per
share
3
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Proposed maximum
aggregate offering
price
3
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Amount of
registration fee
3
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Common Shares, $1.00 par value
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7,500,000
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$
21.325
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$
159,937,500
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$
21,815.48
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1
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Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plan described herein.
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2
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Pursuant to Rule 416(a), the amount of securities registered under this Registration Statement shall include an indeterminate number of additional
Common Shares that may become issuable as a result of stock splits, stock dividends or similar transactions pursuant to the anti-dilution provisions of the employee benefit plan described herein.
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3
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The registration fee has been calculated pursuant to Rules 457(c) and (h), based on the average of the high and low prices of such Common Shares
reported in the consolidated reporting system on December 21, 2012.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
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Item 3.
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INCORPORATION OF DOCUMENTS BY REFERENCE
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The following documents, filed with the Securities and Exchange Commission (the “Commission”) by the Registrant, are incorporated into this Registration Statement by reference:
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(1)
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The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011;
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(2)
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All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the “1934 Act”) since the end of the
fiscal year covered by the report referred to in (1) above;
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(3)
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The Annual Report on Form 11-K for The Progressive Corporation Executive Deferred Compensation Plan for the fiscal year ended December 31, 2011; and
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(4)
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The description of the Common Shares contained in the Registrant’s Registration Statement filed on Form 10 under the 1934 Act on file with the Commission and any
amendment or report filed for the purpose of updating such description.
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All documents filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereunder have been sold, or
which de-registers all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
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Item 6.
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INDEMNIFICATION OF DIRECTORS AND OFFICERS
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Article VI of the Code of Regulations of the Registrant provides for indemnification of any current or former 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 past, pending or threatened action, suit or proceeding, criminal or
civil, to which he or she was, is or may be a party by reason of his or her status as such director, officer or employee.
A
current or former director, officer or employee is entitled to indemnification if he or she 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 (1) by the directors of the Registrant 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 (2) by
the shareholders of the Registrant 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 Registrant 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 of the Registrant 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 or her duty to the Registrant, (b) acted in good faith and in a manner he or she reasonably believed to be in the best interest of the Registrant, and (c) in any matter which is the subject of a
criminal action, suit or proceeding, had no reasonable cause to believe that his or her 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 Registrant 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 or on behalf of the director, officer or employee to repay such expenses unless it shall ultimately be determined that he or she is entitled to be
indemnified by the corporation.
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 Registrant’s Articles of Incorporation or Code of Regulations), and unless the only
liability asserted against the director in an action, suit, or proceeding referred to above is pursuant to section 1701.95 of the Ohio Revised Code (which governs the liability of directors for unlawful loans, dividends or distributions), 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 or her 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.
2
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 or her in any such capacity, whether or not the corporation would have power to indemnify him or her under Ohio law. Such
insurance may be purchased from or maintained with a person in which the corporation has a financial interest.
The Registrant
maintains directors and officers liability insurance in the aggregate amount of $50,000,000 under policies issued by unaffiliated insurance companies. The risks covered by such policy include certain liabilities under the securities laws.
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4.1
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Amended Articles of Incorporation of The Progressive Corporation (as amended April 18, 2008)
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4.2
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Code of Regulations of The Progressive Corporation (as amended April 20, 2012)
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4.3
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The Progressive Corporation Executive Deferred Compensation Plan (2003 Amendment and Restatement)
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4.4
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First Amendment to The Progressive Corporation Executive Deferred Compensation Plan (2003 Amendment and Restatement)
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4.5
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Second Amendment to The Progressive Corporation Executive Deferred Compensation Plan (2003 Amendment and Restatement)
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4.6
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Third Amendment to The Progressive Corporation Executive Deferred Compensation Plan (2003 Amendment and Restatement)
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4.7
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Fourth Amendment to The Progressive Corporation Executive Deferred Compensation Plan (2003 Amendment and Restatement)
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4.8
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The Progressive Corporation Executive Deferred Compensation Plan (2008 Amendment and Restatement)
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4.9
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First Amendment to The Progressive Corporation Executive Deferred Compensation Plan (2008 Amendment and Restatement)
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4.10
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The Progressive Corporation Executive Deferred Compensation Plan (2010 Amendment and Restatement)
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4.11
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First Amendment to The Progressive Corporation Executive Deferred Compensation Plan (2010 Amendment and Restatement)
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4.12
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Form of The Progressive Corporation Executive Deferred Compensation Plan Deferral Agreement (for 2005 through 2009)
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4.13
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Form of The Progressive Corporation Executive Deferred Compensation Plan Gainsharing/Bonus Deferral Agreement (for 2010 and thereafter)
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4.14
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Form of The Progressive Corporation Executive Deferred Compensation Plan Performance-Based Restricted Stock Deferral Agreement (for 2004)
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4.15
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Form of The Progressive Corporation Executive Deferred Compensation Plan Performance-Based Restricted Stock Deferral Agreement (for 2005)
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4.16
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Form of The Progressive Corporation Executive Deferred Compensation Plan Performance-Based Restricted Stock Deferral Agreement (for 2006 through 2009)
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4.17
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Form of The Progressive Corporation Executive Deferred Compensation Plan Performance-Based Restricted Stock Unit Deferral Agreement (for 2010 and thereafter)
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4.18
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Form of The Progressive Corporation Executive Deferred Compensation Plan Time-Based Restricted Stock Deferral Agreement (for 2003)
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4.19
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Form of The Progressive Corporation Executive Deferred Compensation Plan Time-Based Restricted Stock Deferral Agreement (for 2004)
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3
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4.20
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Form of The Progressive Corporation Executive Deferred Compensation Plan Time-Based Restricted Stock Deferral Agreement (for 2005)
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4.21
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Form of The Progressive Corporation Executive Deferred Compensation Plan Time-Based Restricted Stock Deferral Agreement (for 2006 through 2009)
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4.22
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Form of The Progressive Corporation Executive Deferred Compensation Plan Time-Based Restricted Stock Unit Deferral Agreement (for 2010 and thereafter)
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4.23
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The Progressive Corporation Executive Deferred Compensation Trust (November 8, 2002 Amendment and Restatement)
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4.24
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First Amendment to Trust Agreement between Fidelity Management Trust Company and Progressive
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4.25
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Second Amendment to The Progressive Corporation Executive Deferred Compensation Trust
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4.26
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Third Amendment to The Progressive Corporation Executive Deferred Compensation Trust
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4.27
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Fourth Amendment to The Progressive Corporation Executive Deferred Compensation Trust
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4.28
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Fifth Amendment to The Progressive Corporation Executive Deferred Compensation Trust
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4.29
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Sixth Amendment to The Progressive Corporation Executive Deferred Compensation Trust
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4.30
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Seventh Amendment to The Progressive Corporation Executive Deferred Compensation Trust
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5.1
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Opinion of Baker & Hostetler LLP
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23.1
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm
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23.2
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Consent of Meaden & Moore, Ltd., Independent Registered Public Accounting Firm
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23.3
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Consent of Baker & Hostetler LLP (included in Exhibit 5.1)
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24.2
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Resolutions of the Executive Committee of the Board of Directors of the Registrant as to Powers of Attorney, certified by the Secretary of the Registrant
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The undersigned
Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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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 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
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(iii)
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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;
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4
provided, however,
that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained in 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.
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(2)
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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.
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(3)
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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.
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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 and each filing of the Plan’s annual report pursuant to 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 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 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.
5
SIGNATURES
The Registrant
. 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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mayfield Village, State of Ohio, on December 27, 2012.
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THE PROGRESSIVE CORPORATION
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By:
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/s/ Charles E. Jarrett
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Charles E. Jarrett, Secretary
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities indicated on December 27, 2012.
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Signature
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Title
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*
Peter B. Lewis
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Director and Chairman of the Board
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/s/ Glenn M. Renwick
Glenn M. Renwick
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Director, President and Chief Executive Officer
(Principal Executive Officer)
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*
Brian C. Domeck
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Vice President and Chief Financial Officer
(Principal Financial Officer)
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/s/ Jeffrey W. Basch
Jeffrey W. Basch
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Vice President and Chief Accounting Officer
(Principal Accounting Officer)
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*
Stuart B. Burgdoerfer
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Director
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*
Charles A. Davis
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Director
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*
Roger N. Farah
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Director
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*
Lawton W. Fitt
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Director
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*
Stephen R. Hardis
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Director
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*
Jeffrey D. Kelly
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Director
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6
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*
Heidi G. Miller, Ph.D.
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Director
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*
Patrick H. Nettles, Ph.D.
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Director
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*
Bradley T. Sheares, Ph.D.
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Director
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*
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Charles E. Jarrett, by signing his name hereto, does sign this document on behalf of the persons indicated above pursuant to powers of attorney duly executed by such
persons and filed as an exhibit to this Registration Statement.
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/s/ Charles E. Jarrett, Attorney-In-Fact
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Charles E. Jarrett, Attorney-In-Fact
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The Plan.
Pursuant to the requirements of the Securities Act of 1933, the undersigned Plan Administrator has duly
caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mayfield Village, State of Ohio, on December 27, 2012.
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The Progressive Corporation Executive Deferred
Compensation Plan
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By:
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/s/ Charles E. Jarrett
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Charles E. Jarrett,
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Authorized Signatory
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7
EXHIBIT INDEX
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Exhibit No.
Under
Reg. S-K,
Item 601
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Form
S-8
Exhibit
No.
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Description of Exhibit
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If Incorporated by Reference, Documents with
Which Exhibit was Previously Filed with SEC
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4
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4.1
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Amended Articles of Incorporation of
The Progressive Corporation (as amended April 18, 2008)
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Registration Statement No. 333-172663 (filed on March 8, 2011; Exhibit 4.5 therein)
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4
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4.2
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Code of Regulations of The Progressive Corporation (as amended April 20, 2012)
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Quarterly Report on Form 10-Q (filed on May 7, 2012; Exhibit 3.1 therein)
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4
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4.3
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The Progressive Corporation Executive Deferred Compensation Plan (2003 Amendment and Restatement)
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Filed herewith
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4
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4.4
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First Amendment to The Progressive Corporation Executive Deferred Compensation Plan (2003 Amendment and Restatement)
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Filed herewith
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4
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4.5
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Second Amendment to The Progressive Corporation Executive Deferred Compensation Plan (2003 Amendment and Restatement)
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Filed herewith
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4
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4.6
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Third Amendment to The Progressive Corporation Executive Deferred Compensation Plan (2003 Amendment and Restatement)
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Filed herewith
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4
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4.7
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Fourth Amendment to The Progressive Corporation Executive Deferred Compensation Plan (2003 Amendment and Restatement)
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Filed herewith
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4
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4.8
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The Progressive Corporation Executive Deferred Compensation Plan (2008 Amendment and Restatement)
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Filed herewith
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4
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4.9
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First Amendment to The Progressive Corporation Executive Deferred Compensation Plan (2008 Amendment and Restatement)
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Filed herewith
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4
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4.10
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The Progressive Corporation Executive Deferred Compensation Plan (2010 Amendment and Restatement)
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Filed herewith
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4
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4.11
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First Amendment to The Progressive Corporation Executive Deferred Compensation Plan (2010 Amendment and Restatement)
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Filed herewith
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EXHIBIT INDEX
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Exhibit No.
Under
Reg. S-K,
Item 601
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Form
S-8
Exhibit
No.
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Description of Exhibit
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If Incorporated by Reference, Documents with
Which Exhibit was Previously Filed with SEC
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4
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4.12
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Form of The Progressive Corporation Executive Deferred Compensation Plan Deferral Agreement (for 2005 through 2009)
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Filed herewith
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4
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4.13
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Form of The Progressive Corporation Executive Deferred Compensation Plan Gainsharing/Bonus Deferral Agreement (for 2010 and thereafter)
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Filed herewith
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4
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4.14
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Form of The Progressive Corporation Executive Deferred Compensation Plan Performance-Based Restricted Stock Deferral Agreement (for 2004)
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Filed herewith
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4
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4.15
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Form of The Progressive Corporation Executive Deferred Compensation Plan Performance-Based Restricted Stock Deferral Agreement (for 2005)
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Filed herewith
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4
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4.16
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Form of The Progressive Corporation Executive Deferred Compensation Plan Performance-Based Restricted Stock Deferral Agreement (for 2006 through 2009)
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Filed herewith
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4
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4.17
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Form of The Progressive Corporation Executive Deferred Compensation Plan Performance-Based Restricted Stock Unit Deferral Agreement (for 2010 and thereafter)
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Filed herewith
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4
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4.18
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Form of The Progressive Corporation Executive Deferred Compensation Plan Time-Based Restricted Stock Deferral Agreement (for 2003)
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Filed herewith
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4
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4.19
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Form of The Progressive Corporation Executive Deferred Compensation Plan Time-Based Restricted Stock Deferral Agreement (for 2004)
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Filed herewith
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4
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4.20
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Form of The Progressive Corporation Executive Deferred Compensation Plan Time-Based Restricted Stock Deferral Agreement (for 2005)
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Filed herewith
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4
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4.21
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Form of The Progressive Corporation Executive Deferred Compensation Plan Time-Based Restricted Stock Deferral Agreement (for 2006 through 2009)
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Filed herewith
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EXHIBIT INDEX
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Exhibit No.
Under
Reg. S-K,
Item 601
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Form
S-8
Exhibit
No.
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Description of Exhibit
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If Incorporated by Reference, Documents with
Which Exhibit was Previously Filed with SEC
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4
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4.22
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Form of The Progressive Corporation Executive Deferred Compensation Plan Time-Based Restricted Stock Unit Deferral Agreement (for 2010 and thereafter)
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Filed herewith
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4
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4.23
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The Progressive Corporation Executive Deferred Compensation Trust (November 8, 2002 Amendment and Restatement)
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Filed herewith
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4
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4.24
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First Amendment to Trust Agreement between Fidelity Management Trust Company and Progressive
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Filed herewith
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4
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4.25
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Second Amendment to The Progressive Corporation Executive Deferred Compensation Trust
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Filed herewith
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4
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4.26
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Third Amendment to The Progressive Corporation Executive Deferred Compensation Trust
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Filed herewith
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4
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4.27
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Fourth Amendment to The Progressive Corporation Executive Deferred Compensation Trust
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Filed herewith
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4
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4.28
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Fifth Amendment to The Progressive Corporation Executive Deferred Compensation Trust
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Filed herewith
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4
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4.29
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Sixth Amendment to The Progressive Corporation Executive Deferred Compensation Trust
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Filed herewith
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4
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4.30
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Seventh Amendment to The Progressive Corporation Executive Deferred Compensation Trust
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Filed herewith
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5
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5.1
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Opinion of Baker & Hostetler LLP
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Filed herewith
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23
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23.1
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm
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Filed herewith
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23
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23.2
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Consent of Meaden & Moore, Ltd., Independent Registered Public Accounting Firm
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Filed herewith
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EXHIBIT INDEX
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Exhibit No.
Under
Reg. S-K,
Item 601
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Form
S-8
Exhibit
No.
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Description of Exhibit
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If Incorporated by Reference, Documents with
Which Exhibit was Previously Filed with SEC
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23
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23.3
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Consent of Baker & Hostetler LLP
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Included in Exhibit 5.1
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24
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24.1
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Powers of Attorney
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Filed herewith
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24
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24.2
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Resolutions of the Executive Committee of the Board of Directors of the Registrant as to Powers of Attorney, certified by the Secretary of the Registrant
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Filed herewith
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Exhibit 4.3
THE PROGRESSIVE CORPORATION EXECUTIVE
DEFERRED COMPENSATION PLAN
( 2003 Amendment and Restatement)
TABLE OF CONTENTS
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PAGE NO.
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ARTICLE 1
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DEFINITIONS
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1.1 “
Affiliated Company
”
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1
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1.2 “
Account
” or “
Deferral Account
”
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1
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1.3 “
Award
”
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1
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1.4 “
Beneficiary
”
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1
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1.5 “
Change in Control
”
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1
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1.6 “
Code
”
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1
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1.7 “
Committee
”
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1
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1.8 “
Company
”
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1
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1.9 “
Company Stock Fund
”
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2
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1.10 “
Deduction Limitation
”
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2
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1.11 “
Deferral Agreement
”
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2
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1.12 “
Deferral
”
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2
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1.13 “
Disabled
” and “
Disability
”
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2
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1.14 “
Distribution Event
”
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2
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1.15 “
Eligible Executive
”
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2
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1.16 “
ERISA
”
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2
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1.17 “
Fixed Deferral Period
”
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3
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1.18 “
Gainsharing Award
”
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3
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1.19 “
Incentive Plan
”
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3
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1.20 “
Investment Fund
”
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3
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1.21 “
Participant
”
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3
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1.22 “
Performance-Based Restricted Stock Award
”
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3
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1.23 “
Plan
”
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3
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1.24 “
Plan Year
”
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3
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1.25 “
Restricted Stock
”
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3
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1.26 “
Restricted Stock Award
”
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3
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1.27 “
Stock
”
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3
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1.28 “
Termination of Employment
”
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3
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1.29 “
Time-Based Restricted Stock Award
”
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3
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1.30 “
Trust
”
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4
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1.31 “
Trust Agreement
”
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4
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1.32 “
Trustee
”
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4
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1.33 “
Valuation Date
”
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4
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1.34 “
Withdrawal Date
”
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4
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ARTICLE 2
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DEFERRAL OF AWARDS
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2.1
Method of Deferral
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4
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2.2
Deferral Agreement Provisions
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4
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2.3
Fixed Deferral Periods
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5
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ARTICLE 3
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DISTRIBUTIONS AND WITHDRAWALS
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3.1
Date of Distribution
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6
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3.2
Method of Distribution
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6
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3.3
Amount of Distribution
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7
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3.4
Form of Distribution
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7
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3.5
Withdrawal Election
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7
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ARTICLE 4
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ACCOUNTS
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4.1
Establishment of Deferral Accounts
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8
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4.2
Investment of Accounts
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8
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4.3
Valuation of Investment Funds
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8
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4.4
Valuation of Accounts
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9
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4.5
Nature of Accounts
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9
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4.6
Account Statements
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9
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ARTICLE 5
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INVESTMENT FUNDS
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5.1
Investment Funds
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9
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5.2
Investment Elections of Participants
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10
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5.3
Transfers
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10
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5.4
Special Rules for Restricted Stock
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10
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5.5
Nature of Investment Funds
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10
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5.6
Liquidation of Investment Funds
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10
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ARTICLE 6
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TRUST
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6.1
Establishment of Trust
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11
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ARTICLE 7
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PLAN OPERATION AND ADMINISTRATION
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7.1
Powers of Committee
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11
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7.2
Nondiscriminatory Exercise of Authority
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12
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7.3
Reliance on Tables, etc
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12
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7.4
Indemnification
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12
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7.5
Notices to Committee
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12
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ARTICLE 8
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CLAIMS PROCEDURES
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8.1
Establishment of Claims Procedures
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13
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8.2
Claims Denials
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13
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8.3
Appeals of Denied Claims
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13
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8.4
Review of Appeals
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14
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8.5
Extensions
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14
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ARTICLE 9
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AMENDMENT AND TERMINATION OF THE PLAN
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9.1
Amendment
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14
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9.2
Termination
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15
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9.3
Liquidation of the Trust
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15
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ARTICLE 10
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MISCELLANEOUS PROVISIONS
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10.1
Headings
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15
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10.2
Plan Not Contract of Employment
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15
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10.3
Severability
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16
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10.4
Prohibition on Assignment
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16
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10.5
Number and Gender
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16
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10.6
Governing Law
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16
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10.7
Satisfaction of Claims
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16
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10.8
No Liability
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16
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10.9
Tax Withholding
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17
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10.10
Facility of Payment
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17
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10.11
Repayment of Awards
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17
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10.12
Stock Subject to the Plan
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17
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THE PROGRESSIVE CORPORATION EXECUTIVE
DEFERRED COMPENSATION PLAN
(2003 Amendment and Restatement)
WHEREAS
, The Progressive
Corporation maintains The Progressive Corporation Executive Deferred Compensation Plan pursuant to a 2000 Amendment and Restatement and the First Amendment thereto; and
WHEREAS
, it is desired to further amend and restate the Plan;
NOW,
THEREFORE
, effective March 1, 2003 the Plan is hereby amended and restated in its entirety to provide as follows:
ARTICLE 1
DEFINITIONS
1.1 “
Affiliated Company
” means any corporation included in the affiliated group of corporations as defined in Section 1504 of the Code (determined without regard to 1504(b)) of which
the Company is the common parent corporation.
1.2 “
Account
” or “
Deferral Account
” shall
have the meaning set forth in Section 4.1.
1.3 “
Award”
means a Gainsharing Award or Restricted Stock
Award.
1.4 “
Beneficiary
” means such person(s) as the Participant has designated. A Participant may change
his/her Beneficiary designation at any time. All Beneficiary designations (including changes) shall be made in writing on such forms as the Committee shall prescribe, and shall become effective only when received and accepted by the Committee;
provided, however, that a Beneficiary designation (including a change) received by the Committee after the designating Participant’s death shall be disregarded. In the absence of a Beneficiary designation, or if the designated Beneficiary is no
longer living or in existence at the time of the Participant’s death, all distributions payable from the Plan upon the Participant’s death shall be paid to the Participant’s estate.
1.5 “
Change in Control
” means a “Change in Control” or “Potential Change in Control” within the
meaning of The Progressive Corporation 2003 Incentive Plan (as amended from time to time).
1.6 “
Code
” means
the Internal Revenue Code of 1986, as amended.
1.7 “
Committee
” means the Compensation Committee of the Board
of Directors of the Company, or any successor committee.
1.8 “
Company
” means The Progressive Corporation, an
Ohio corporation, or its successors.
- 1 -
1.9 “
Company Stock Fund
” means an Investment Fund consisting of Stock and
cash, and administered in accordance with such rules regarding reinvestment of dividends and treatment of fractional shares as the Committee shall prescribe.
1.10 “
Deduction Limitation
” means the following described limitation on a payment that may otherwise be distributable under the Plan. If the Committee determines in good faith prior to a
Change in Control that there is a reasonable likelihood that any compensation paid to a Participant for a taxable year of the Company would not be deductible by the Company solely by reason of the limitation under Code Section 162(m), then to
the extent deemed necessary by the Committee to ensure that the entire amount of any distribution to the Participant pursuant to this Plan prior to a Change in Control is deductible, the Committee may elect to defer all or any portion of a
distribution under this Plan. Any amounts deferred pursuant to this limitation shall continue to be deemed to be invested as provided in Article 5. The amounts so deferred (subject to investment gains and losses) shall be distributed to the
Participant or his or her Beneficiary (if the Participant dies) at the earliest possible date, as determined by the Committee in good faith, on which the deductibility of compensation paid or payable to the Participant for the taxable year of the
Company during which the distribution is made will not be limited by Code Section 162(m), or, if earlier, upon a Change in Control. Notwithstanding anything to the contrary in this Plan, the Deduction Limitation shall not apply to any
distributions made after a Change in Control.
1.11 “
Deferral Agreement
” means an agreement entered into by
an Eligible Executive pursuant to Article 2.
1.12 “
Deferral
” means an amount credited to a Deferral Account
pursuant to a Deferral Agreement.
1.13 “
Disabled” and “Disability
” means that a Participant is
expected to be unable to perform the duties of his usual occupation for at least twelve (12) consecutive months, as determined by the Committee.
1.14 “
Distribution Event
” means, as to each Participant, the earliest of the following events:
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(i)
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the Participant’s death;
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(ii)
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the Participant’s Termination of Employment; or
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1.15
“
Eligible Executive
” means any executive of the Company or any Affiliated Company who is designated in writing as an Eligible Executive by the Committee, excluding, however, individuals who are not residents of the United States or
are not working at a location in the United States.
1.16 “
ERISA
” means the Employee Retirement Income
Security Act of 1974, as amended.
- 2 -
1.17 “
Fixed Deferral Period
” shall have the meaning set forth in
Section 2.3.
1.18 “
Gainsharing Award
” means any bonus or other incentive award payable with respect to
a Plan Year under The Progressive Corporation 2003 Gainsharing Plan, The Progressive Corporation 2003 Information Technology Incentive Plan, 2003 Progressive Capital Management Bonus Plan, The Progressive Corporation 1999 Executive Bonus Plan (as
amended on January 31, 2003) or any other plan or program as may be designated by the Committee.
1.19
“Incentive
Plan”
means The Progressive Corporation 2003 Incentive Plan, as amended from time to time.
1.20 “
Investment
Fund
” means a device established from time to time by the Committee pursuant to Section 5.1 that is used to calculate gains and losses in amounts deferred by Participants under the Plan.
1.21 “
Participant
” means an Eligible Executive who has deferred receipt of a portion of any Gainsharing Award or
Restricted Stock Award pursuant to a Deferral Agreement. Participation shall begin on the date that a Deferral Account is established in the name of the Participant and shall end on the date that the Participant dies or receives a distribution of
the balance of all his/her Deferral Accounts.
1.22 “
Performance-Based Restricted Stock Award”
means an Award
of “Performance-Based Restricted Stock”, as defined in the Incentive Plan.
1.23 “
Plan
” means The
Progressive Corporation Executive Deferred Compensation Plan (2003 Amendment and Restatement), as set forth herein and as it may be amended from time to time.
1.24 “
Plan Year
” means 2003 and each subsequent calendar year.
1.25 “
Restricted Stock
” means an award of shares of Stock that is made pursuant to the Incentive Plan and is subject to
restrictions.
1.26
“Restricted Stock Award”
means an award of Restricted Stock under the Incentive Plan.
1.27 “
Stock
” means the Common Shares, $1.00 par value, of the Company.
1.28 “
Termination of Employment
” means the voluntary or involuntary cessation of a Participant’s active employment
with the Company and all Affiliated Companies as a result of any reason other than death, Disability and approved leave of absence.
1.29 “
Time-Based Restricted Stock Award
” means an Award of “Time-Based Restricted Stock”, as defined in the Incentive Plan.
- 3 -
1.30 “
Trust
” shall mean the trust maintained pursuant to the Trust
Agreement and known as The Progressive Corporation Executive Deferred Compensation Trust.
1.31 “
Trust
Agreement
” shall mean the agreement of trust between the Company and the Trustee executed in furtherance of the Plan, as the same may be amended from time to time.
1.32 “
Trustee
” shall mean the person selected from time to time by the Company to serve as trustee under the Trust Agreement.
1.33 “
Valuation Date
” shall mean each day that the New York Stock Exchange is open for trading.
1.34 “
Withdrawal Amount
” shall have the meaning provided in Article 3.
ARTICLE 2
DEFERRAL OF AWARDS
2.1
Method of Deferral
.
Each Eligible Executive may elect to defer receipt of all or a
portion of his/her Gainsharing Award and/or the entirety of any of his/her Restricted Stock Awards in respect of any Plan Year by signing a Deferral Agreement and delivering it to the Committee or by completing a Deferral Agreement and transmitting
it to the Committee via the Company’s electronic mail system. If a Gainsharing Award is payable in installments, each installment, whether or not payable in the same Plan Year, shall be subject to the same Deferral Agreement. Any taxes or other
amounts due with respect to any deferred Gainsharing Award or Restricted Stock Award shall be paid by the Eligible Executive to the Company no later than the date specified by the Company.
2.2
Deferral Agreement Provisions
.
Each Deferral Agreement must satisfy all of the following requirements:
(a) it
must be in the form specified by the Committee;
(b) it must be delivered in writing, or transmitted electronically, to the
Committee in accordance with such procedures as the Committee may establish from time to time.
(c) it must be irrevocable;
(d) as to deferrals of Gainsharing Awards, it must apply to only one such Award;
(e) as to deferrals of Restricted Stock Awards, it must apply to all Time-Based Restricted Stock Awards granted during the Plan Year, all
Performance-Based Restricted Stock Awards granted during the Plan Year, or both;
- 4 -
(f) it must be delivered to the Committee in writing, or received by the Committee via the
Company’s electronic mail system, (i) as to each Gainsharing Award, prior to the Plan Year in which the Gainsharing Award will be earned, and (ii) as to each Restricted Stock Award, prior to the date the Restricted Stock Award is
granted;
(g) as to deferrals of Gainsharing Awards, it must specify the percentage of the Eligible Executive’s
Gainsharing Award to be deferred, which percentage shall not be less than ten percent (10%). The same deferral percentage shall apply to each installment of a Gainsharing Award covered by the Deferral Agreement. However, a Deferral Agreement may
provide for the deferral of a percentage of that portion of a Gainsharing Award that exceeds a specified gross dollar amount, which percentage shall not be less than ten percent (10%). Notwithstanding the preceding provisions of this
Section 2.2(g), no Deferral shall be less than such dollar amount as the Committee may specify from time to time;
(h) as
to deferral of a Restricted Stock Award, it must apply to the entirety of each Time-Based Restricted Stock Award granted during the Plan Year, the entirety of each Performance-Based Restricted Stock Award granted during the Plan Year, or both;
(i) it must specify whether the balance of the Deferral Account to be established pursuant to that Deferral Agreement will be
distributed in a lump sum, in three (3) annual installments, in five (5) annual installments, or in ten (10) annual installments; and
(j) it must contain such other provisions, conditions and limitations as may be required by the Company or the Committee.
2.3
Fixed Deferral Periods
.
If an Eligible Executive wishes to defer receipt of all or a
portion of any Award for a fixed period of time (“Fixed Deferral Period”), then his/her Deferral Agreement relating to such Award shall specify that Fixed Deferral Period. Such Fixed Deferral Period shall not be less than three
(3) years following (i) in the case of a deferral of all or a portion of a Gainsharing Award, the end of the Plan Year in which the Gainsharing Award will be earned and (ii) in the case of a deferral of a Restricted Stock Award, the
end of the Plan Year in which the last of the restrictions applicable to the Restricted Stock Award expire, and, as to all Awards, shall end on the date the Eligible Executive attains age 43, 47, 51, 55 or 59, as elected by the Eligible Executive in
his/her Deferral Agreement. In the case of a Restricted Stock Award as to which restrictions expire in installments, the Fixed Deferral Period must end on the same date for all installments. Notwithstanding the preceding provisions of this
Section 2.3, Eligible Executives may not elect a Fixed Deferral Period with respect to the deferral of any Performance-Based Restricted Stock Award.
- 5 -
ARTICLE 3
DISTRIBUTIONS AND WITHDRAWALS
3.1
Date of Distribution
.
Distribution of the balance of each Deferral Account of a Participant shall be made or shall commence within thirty (30) days following
the earlier of (i) the date a Distribution Event occurs, (ii) the date on which the Fixed Deferral Period, if any, applicable to such Account expires, or (iii) the date, if any, selected by the Company, in its sole discretion,
pursuant to Section 9.2. If distribution is to be made in installments, payment of installments following the first installment shall be made within thirty (30) days following each anniversary of the date referred to in clause (i) or
(ii) of the preceding sentence, as applicable, until all installments have been paid. The Committee, in its sole discretion, may also permit distribution of the balance of all of a Participant’s Deferral Accounts to be made or commence at
any time following the date the Participant is determined by the Committee to be Disabled. If the Committee approves such a Disability distribution, no further Deferrals shall be made with respect to the Disabled Participant following the date of
the Committee’s approval, and each Deferral Agreement to which such Participant is a party shall be of no further effect.
3.2
Method of Distribution
.
Each distribution of the balance of a Deferral Account shall be made to the Participant, except that any such distribution made on account of the Participant’s death shall be made to the
Participant’s Beneficiary. Each distribution made on account of the Participant’s death, termination of the Plan or a Change in Control shall be paid in a lump sum. Each distribution made on account of the Participant’s Termination of
Employment or expiration of a Fixed Deferral Period shall be paid in either a lump sum or installments, as specified in the applicable Deferral Agreement. Each distribution made on account of the Participant’s Disability shall be paid in either
a lump sum or installments, as determined by the Committee in its sole discretion. If a Participant elects to receive (or, in the case of Disability, begins receiving) payment in installments and dies prior to payment of all installments, the
balance remaining unpaid at his/her death shall be paid to his/her Beneficiary in a lump sum. Installment payments shall be paid in three (3) annual installments, in five (5) annual installments or in ten (10) annual installments, as
specified in the applicable Deferral Agreement. Notwithstanding the preceding provisions of this Section 3.2, a Participant may elect to change the method of distribution elected in respect of any distribution to be made on account of
Termination of Employment or expiration of a Fixed Deferral Period to any of the four permissible options (lump sum, in three (3) annual installments, in five (5) annual installments or in ten (10) annual installments). Each such
change must be made in writing on such forms as the Committee shall specify and must be delivered to the Committee at least one (1) year prior to Termination of Employment or expiration of the Fixed Deferral Period.
- 6 -
3.3
Amount of Distribution
.
The amount of each lump sum payment shall be equal to the balance of the Deferral Account, as of the Valuation Date immediately preceding the date of distribution. The amount of each installment payment
shall be equal to the balance of the Deferral Account as of the Valuation Date immediately preceding the date of payment multiplied by a fraction, the numerator of which is one and the denominator of which is the number of years remaining in the
period over which installments are to be paid. Installment distributions to be made in Stock shall be rounded to the nearest whole share. Notwithstanding anything in the Plan to the contrary, all distributions, except those made on account of a
Change in Control, are subject to the Deduction Limitation.
3.4
Form of Distribution
.
All distributions shall be made in cash, except that a distribution representing amounts invested in the Company Stock Fund shall be made in Stock with
any fractional shares of Stock to be made in cash.
3.5
Withdrawal Election
.
A Participant may elect at any time to withdraw all of his/her Deferral Account balances, less a withdrawal penalty equal to 10% of such amount (the net
amount shall be referred to as the “Withdrawal Amount”). This election can be made at any time before or after Disability, death or Termination of Employment, and whether or not the Participant is in the process of being paid pursuant to
an installment payment schedule. No partial withdrawals of the Withdrawal Amount shall be allowed. The Withdrawal Amount shall be paid in a lump sum, except to the extent the Deduction Limitation requires otherwise. The Participant shall make a
withdrawal election by giving the Committee advance written notice of the election in a form specified by the Committee. The election shall be irrevocable. The Participant shall be paid (or, if the Deduction Limitation applies, commence to be paid)
the Withdrawal Amount within 30 days after the Committee’s receipt of his/her election. Once the Withdrawal Amount is paid, or commences to be paid, the Participant’s participation in the Plan shall terminate and the Participant shall not
be eligible to participate in the Plan thereafter. If the Deduction Limitation applies, the entire balance of all of the Participant’s Deferral Accounts shall be reduced by the 10% withdrawal penalty effective on the date that payment of the
Withdrawal Amount is to commence, even though final payment of the last portion of the Withdrawal Amount will not be made until permitted by the Deduction Limitation provisions. Any portion of the Withdrawal Amount not paid immediately shall
continue to be deemed to be invested as provided in Article 5. If a Participant dies prior to payment of any portion of a Withdrawal Amount, the remaining portion shall be paid to his/her Beneficiary in a lump sum, subject to the Deduction
Limitation. The provisions of Section 3.4 shall apply to all withdrawals under this Section 3.5.
- 7 -
ARTICLE 4
ACCOUNTS
4.1
Establishment of Deferral Accounts
.
The Committee shall establish a Deferral Account in the name of each Participant for each Gainsharing Award, or portion thereof, and each Restricted Stock
Award that is the subject of a Deferral Agreement. As to Deferrals of Gainsharing Awards, each such Account shall be established as of the first date that such Gainsharing Award, or portion thereof, otherwise would have been paid to the Participant.
As to deferrals of Restricted Stock Awards, each such Account shall be established as of the date that the restrictions applicable to such Restricted Stock Award expire. In the case of a Restricted Stock Award as to which the restrictions expire at
different times for different portions of the Award, such Account shall be established as of the date the first of such restrictions expires. Each Deferral Account shall be credited with the deferred portion of such Award at the time the Account is
established, or, in the case of a Restricted Stock Award as to which the restrictions expire at different times for different portions of the Award, from time-to-time as such restrictions expire. Thereafter, all Deferral Accounts shall be valued and
administered as provided in this Article. Notwithstanding anything in the Plan to the contrary, the Trustee may combine two (2) or more of any Participant’s Deferral Accounts into a single Account, if the Deferral Accounts to be combined
(i) are subject to Fixed Deferral Periods ending on the same date or (ii) are not subject to Fixed Deferral Periods at all.
4.2
Investment of Accounts
.
All credits to a Deferral Account of a Participant shall be
deemed to be invested in such Investment Fund or Funds as the Participant shall elect from time to time in accordance with Article 5. The number of shares of Stock to be credited to a Participant’s Account by virtue of a Participant’s
initial election to invest a portion of a Deferral in the Company Stock Fund shall be determined on the date of the Deferral in accordance with such procedures as the Committee shall establish, based on the weighted average price paid for all shares
of Stock purchased by the Trustee and deposited in the Trust on that date pursuant to Article 6. Notwithstanding the preceding provisions of this Section 4.2 all credits to a Deferral Account of a Participant relating to a deferred Restricted
Stock Award shall be deemed to be invested in the Company Stock Fund until six (6) months and one (1) day following the expiration of the restrictions applicable to such Award, unless otherwise determined by the Committee at or after the
deferral of such Award. Thereafter, the preceding provisions of this Section 4.2 shall apply.
4.3
Valuation of
Investment Funds
.
As of each Valuation Date, the Trustee shall compute the value of each Investment Fund from which shall be determined
the net gain or loss of such Investment Fund since the immediately preceding Valuation Date. The net gain or loss shall include any unrealized and realized profits and losses, and any dividends, interest or other income and any expenses which are
due or accrued, but shall not include distributions from such Investment Fund. In determining the value of each Investment Fund, the Trustee shall use the following values:
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securities listed on any nationally recognized securities exchange shall be valued at the closing price reported on any such exchange on the Valuation Date, or, if there were no sales on the
Valuation Date, then at the last quoted bid price on the Valuation Date. Securities not listed on a recognized securities exchange shall be valued at the last quoted closing bid price on the Valuation Date. A unit of participation in a common trust
fund maintained by the Trustee or a share in a mutual fund shall be valued at the unit value, or share price respectively, in effect at the close of business on the Valuation Date. Securities with respect to which there were no available sale prices
or bid prices on the Valuation Date, and any other investments, shall be valued at prices deemed by the Trustee to represent the fair market value thereof on the Valuation Date.
4.4
Valuation of Accounts
.
As of each Valuation Date, the net gain or loss of each Investment Fund shall be allocated among the appropriate Deferral Accounts in accordance with such procedures as the Committee shall establish,
which procedures shall apply uniformly to all Participants.
4.5
Nature of Accounts
.
All credits to each Deferral Account of each Participant shall be recorded as a liability on the books of the Company. However, no Participant or
Beneficiary shall have any proprietary rights of any nature with respect to any Account of any Participant or with respect to any funds, securities or other property owned by the Company or any Affiliated Company that is held in the Trust or that
otherwise may be represented from time to time by Investment Funds. All payments under the Plan shall be made from the Trust or from the Company’s general funds and in no event shall any Participant or Beneficiary have any claims or rights to
any payment hereunder that are superior to any claims or rights of any general creditor of the Company.
4.6
Account
Statements
.
The Committee will furnish each Participant, or make available to each Participant on-line, periodic statements of the value
of each of his/her Deferral Accounts.
ARTICLE 5
INVESTMENT FUNDS
5.1
Investment Funds
.
The Committee shall establish and maintain the Company Stock Fund and such other Investment Funds as are specified from time to time by the Company. In
this regard, the Company may choose to offer as Investment Funds any investment vehicles, including without limitation: (i) securities issued by investment companies advised by affiliates of the Trustee, (ii) guaranteed investment
contracts recommended by the Trustee, and (iii) collective investment trusts maintained by the Trustee.
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5.2
Investment Elections of Participants
.
Each Participant shall make an investment election in the manner prescribed by the Committee, directing the manner in which his/her Deferrals shall be
deemed to be invested. Each investment election must be made at the time the applicable Deferral Agreement is signed and may be changed upon notice to the Committee at any time prior to the deemed deposit of the applicable Deferral into one or more
Investment Funds. Such elections and notices to the Committee must be made in writing or through the Company’s electronic mail system in accordance with such procedures as the Committee may prescribe. Each Participant may make a separate
investment election for each of his/her Deferral Accounts. Each investment election shall specify that Deferrals shall be deemed to be deposited in one or more of the Investment Funds in percentages that are each an integral multiple of 1% and that
in the aggregate equal 100% of the Deferral.
5.3
Transfers
. Amounts deemed to be invested in an Investment Fund
pursuant to this Section may be transferred to another Investment Fund in accordance with such procedures and limitations as the Committee shall prescribe. The procedures and limitations prescribed by the Committee may include, without limitation,
provisions which (i) limit transfers to specified dollar amounts or percentages (ii) limit the number of transfers that each Participant may make each Plan year (iii) limit the dates as of which transfers may become effective and
(iv) impose waiting periods or other restrictions in connection with multiple transfers in and out of the same Investment Fund. All such procedures and limitations shall apply uniformly to similarly situated Participants.
5.4
Special Rule for Restricted Stock Awards
. Notwithstanding the preceding provisions of this Article 5, each Deferral of a
Restricted Stock Award shall be deemed to be invested in the Company Stock Fund until six (6) months and one (1) day following the date the restrictions applicable to such Restricted Stock Award expire, unless otherwise determined by the
Committee at or after the deferral of such Award. Thereafter, the Participant may transfer all or a portion of such Deferral to another Investment Fund in accordance with the preceding provisions of this Article 5.
5.5
Nature of Investment Funds
.
Notwithstanding anything in the Plan, Trust or any Deferral Agreement to the contrary, no Participant shall have any rights or interests in any particular funds, securities or property of the Company, any
Affiliated Company or the Trust, or in any investment vehicle in which Deferrals are deemed to be invested, by virtue of any investment election made by the Participant under the Plan, any deemed investment under the Plan or any transactions engaged
in by the Trust. Each Deferral Account, however, shall be credited/charged in accordance with Article 4 with gains/losses as if the Participant in fact had made a corresponding actual investment.
5.6
Liquidation of Investment Funds
.
If any Investment Fund is liquidated or otherwise ceases to exist without a successor, then that portion of each Account balance that previously has been deemed to have been invested in that Investment
Fund shall be deemed to have been transferred to an
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Investment Fund consisting of money market instruments, or, if none, such other Investment Fund selected by the Committee.
ARTICLE 6
TRUST
6.1
Establishment of Trust
.
The Company shall establish and maintain a Trust to provide a source of funds to assist the Company in meeting its liabilities under the Plan. Within thirty (30) days following the end of each Plan
Year ending after the Trust has become irrevocable pursuant to the Trust Agreement, the Company shall be required to irrevocably deposit additional cash or other property to the Trust in an amount sufficient to pay each Participant or Beneficiary
the benefits payable pursuant to the terms of the Plan as of the close of that Plan year.
The principal of the Trust, and any earnings
thereon, shall be held separate and apart from other funds of Company and shall be used exclusively for the uses and purposes of Plan Participants and general creditors of the Company as set forth herein and in the Trust Agreement. Plan Participants
and their Beneficiaries shall have no preferred claim on, or any beneficial ownership interest in, any assets of the Trust. Any rights created under the Plan and the Trust Agreement shall be mere unsecured contractual rights of Plan Participants and
their Beneficiaries against Company. Any assets held by the Trust will be subject to the claims of the Company’s general creditors under federal and state law in the event of Insolvency, as defined in the Trust Agreement. All assets deposited
in the Trust shall be held, administered and distributed by the Trustee in accordance with the Trust Agreement. The Company shall pay directly, or reimburse the Trustee for, all taxes due in respect of any income or gains on Trust assets.
ARTICLE 7
PLAN OPERATION AND ADMINISTRATION
7.1
Powers of Committee
.
The Committee will have full power to administer the Plan. Such power includes, but is not limited to, the following authority:
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(a)
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to make and enforce such rules and regulations as it deems necessary or proper for the efficient administration of the Plan;
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(b)
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to interpret the Plan and to decide all matters arising thereunder, including the right to resolve or remedy any ambiguities, errors, inconsistencies or omissions. All
such interpretations shall be final and binding on all parties;
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(c)
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to compute the amounts payable to any Participant or Beneficiary or other person in accordance with the provisions of the Plan;
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(d)
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to authorize disbursements from the Trust or the Plan;
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(e)
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to keep such records and submit such filings, elections, applications, returns or other documents or forms as may be required under ERISA, the Code or other applicable
law;
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(f)
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to appoint such agents, counsel, accountants and consultants as may be desirable to assist in administering the Plan;
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(g)
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To exercise the other powers that are expressly granted to it herein, or that are impliedly necessary for it to carry out any of its responsibilities hereunder; and
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(h)
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by written instrument, to delegate any of the foregoing powers.
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7.2
Nondiscriminatory Exercise of Authority
.
The Committee shall exercise its authority in
a nondiscriminatory manner so that all persons similarly situated will receive substantially the same treatment.
7.3
Reliance on Tables, etc
.
The Committee will be entitled, to the extent permitted by law, to rely conclusively on all tables,
valuations, certificates, opinions and reports which are furnished by any accountant, Trustee, counsel or other expert retained by the Committee to assist it in administering the Plan.
7.4
Indemnification
.
In
addition to whatever rights of indemnification to which employees, officers and directors of the Company and the Affiliated Companies may be entitled under the articles of incorporation, regulations or bylaws of the Company or the Affiliated
Companies, under any provision of law, or under any other agreement, the Company shall satisfy any liabilities actually and reasonably incurred by any such employee, officer or director, including expenses, attorneys’ fees, judgments, fines and
amounts paid in settlement, in connection with any threatened, pending, or completed action, suit, or proceeding which is related to the exercise or failure to exercise by such person or persons of any of the powers, authority, responsibilities, or
discretion of the Company, the Affiliated Companies or the Committee provided under the Plan or the Trust Agreement, or reasonably believed by such person or persons to be provided thereunder, and any action taken by such person or persons in
connection therewith.
7.5
Notices to Committee
.
The Committee shall designate one or more addresses to which notices and other communications to the Committee shall be sent. No notice or other communication shall be considered to have been given to or
received by the Committee until it has been delivered to the Committee’s attention at one of such designated addresses.
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ARTICLE 8
CLAIMS PROCEDURES
8.1
Establishment of Claims Procedures
The Committee shall establish reasonable procedures under which a claimant, who may be a Participant, or Beneficiary, or
his/her duly authorized representative, may present a claim for benefits under this Plan.
8.2
Claims Denials
Unless such claim is allowed in full by the Committee, written notice of the denial shall be furnished to the claimant within
ninety (90) days (which may be extended by a period not to exceed an additional ninety (90) days if special circumstances so require and written notice to the claimant is given prior to the expiration of the initial ninety (90) day
period describing such circumstances and indicating the date by which the Committee expects to render its determination) setting forth the following in a manner calculated to be understood by the claimant:
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(i)
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The specific reason(s) for the denial;
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(ii)
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Specific reference(s) to any pertinent provision(s) of the Plan or rules promulgated pursuant thereto on which the denial is based;
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(iii)
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A description of any additional information or material as may be necessary to perfect the claim, together with an explanation of why it is necessary;
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(iv)
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A description of the Plan’s claims review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring
a civil action under Section 502(a) of ERISA following an adverse benefit determination on review; and
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(v)
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An explanation of the steps to be taken if the claimant wishes to resubmit his/her claim for review.
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8.3
Appeals of Denied Claims
Within a reasonable period of time after the denial of the claim, but in any event, not to be more than sixty (60) days, the claimant or his/her duly authorized representative may make written
application to the Committee for a review of such denial. The claimant or his/her representative, may, upon request and free of charge, review or receive copies of documents, records and other information relevant to the claimant’s claim for
benefits, and may submit written comments, documents, records and other information relating to the claim for benefits.
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8.4
Review of Appeals
If an appeal is timely filed, the Committee shall conduct a full and fair review of the claim and mail or deliver to the claimant its
written decision within sixty (60) days after the claimant’s request for review (which may be extended by a period not to exceed an additional sixty (60) days if special circumstances or a hearing so require and written notice to the
claimant is given prior to the expiration of the initial sixty (60) day period describing such special circumstances and indicating the date by which the Committee expects to render its determination). In conducting its review, the Committee
shall take into account all comments, documents, records and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination. The
Committee’s decision on review shall:
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(i)
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Be written in a manner calculated to be understood by the claimant;
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(ii)
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State the specific reason(s) for the decision;
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(iii)
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Make specific reference to pertinent provision(s) of the Plan;
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(iv)
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State that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information
relevant to the claimant’s claim for benefits; and
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(v)
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Include a statement of the claimant’s right to bring a civil action under Section 502(a) of ERISA.
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8.5
Extensions
If a period of time is extended, as permitted under Sections 8.2 and 8.4 above, due to a claimant’s failure to submit information to decide a claim, the period for making the benefit determination on
review shall be tolled from the date on which the notification of the extension is sent to the claimant until the date on which the claimant responds to the request for additional information.
ARTICLE 9
AMENDMENT AND TERMINATION OF THE PLAN
9.1
Amendment
.
The Company may amend the Plan and Trust Agreement in any respect at any
time for any reason by action of the Committee without liability to any Participant, Beneficiary or other person for any such amendment or for any other action taken pursuant to this Section 9.1, provided that any amendment required to be
approved by the Company’s shareholders pursuant to Section 162(m) of the Code shall not be effective until approved by the
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Company’s shareholders in accordance with the requirements of Section 162(m) and further provided that no such amendment shall be made retroactively in a manner that would deprive any
Participant of any rights or benefits which have accrued to his/her benefit under the Plan as of the date such amendment is proposed to be effective, unless such amendment is necessary to comply with applicable law.
9.2
Termination
.
The
Company may terminate the Plan at any time for any reason by action of the Committee without any liability to any Participant, Beneficiary or other person for any such termination or for any other action taken pursuant to this Section 9.2.
Following termination of the Plan, and notwithstanding the provisions of any Deferral Agreement entered into prior to such termination, no additional Deferrals may be made hereunder, but all existing Accounts shall continue to be administered in
accordance with the Plan, as in effect immediately prior to termination, and shall be distributed in accordance with such terms of the Plan and the applicable Deferral Agreements, unless and until the Company elects to accelerate distribution as
provided below. At any time on or after the effective date of termination of the Plan, the Company, in its sole discretion, may elect to accelerate the distribution of the entire balance of each Participant’s Accounts. Such accelerated
distributions shall be made in accordance with Article 3, except that all distributions shall be made in a lump sum based on the value of the Accounts, determined as of the Valuation Date immediately preceding the date of distribution. Upon the
completion of distributions to all Participants or Beneficiaries, as the case may be, no Participant, Beneficiary or person claiming under or through them, will have any claims in respect of the Plan.
9.3
Liquidation of the Trust
.
The Trust shall continue in existence after the termination of the Plan for such period of time as may be required to complete the liquidation thereof in accordance with the terms of this Article 9.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1
Headings
.
The headings of the Plan have been inserted for convenience of reference only and are not to be deemed controlling in any constructions of the provisions
herein (other than with respect to defined terms).
10.2
Plan Not Contract of Employment
.
The existence of the Plan shall not create, evidence or change any contract of employment with any Participant. The right of the Company and all
Affiliated Companies to take corrective, disciplinary or other action with respect to their employees, including terminating their respective employment at any time for any reason, shall not be affected by any
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provision of this Plan, and the Company and the Affiliated Companies will not be deemed responsible to provide continuing employment for any reason, at any time solely by reason of this Plan.
10.3
Severability
.
If any provision of the Plan shall be invalid, such provision shall be fully severable, and the remainder of the Plan and the application thereof shall not be affected thereby.
10.4
Prohibition on Assignment
.
No right or interest under the Plan of any Participant or Beneficiary shall be subject at any time or in any manner to anticipation, alienation, assignment (either at law or in equity), encumbrance (as
security or otherwise), garnishment, levy, execution, or other legal or equitable process, and no Participant or Beneficiary shall have the power at any time or in any manner to anticipate, transfer, assign (either at law or in equity), alienate, or
subject to attachment, garnishment, levy, execution or other legal or equitable process, or in any way encumber, such Participant’s or Beneficiary’s rights or interests under the Plan, and any attempt to do so shall be void; provided,
however, that the Company shall have the unrestricted right to set off against or recover out of any payments due a Participant or Beneficiary at the time such payments would have otherwise been payable hereunder, any amounts owed the Company or any
Affiliated Company by such Participant or Beneficiary.
10.5
Number and Gender
.
Any use of the singular shall be interpreted to include the plural and the plural the singular. Any use of the masculine, feminine or neuter shall be
interpreted to include the masculine, feminine and neuter, as the context shall require.
10.6
Governing Law
.
To the extent not preempted by Federal law, the provisions of the Plan shall be construed, regulated and administered under the laws of the
State of Ohio.
10.7
Satisfaction of Claims
.
Any payment to any Participant or Beneficiary in accordance with the terms of the Plan shall, to the extent thereof, be in full satisfaction of all claims hereunder, whether they be against the Company,
the Committee, or the Trustee, any of whom may require the Participant or Beneficiary (or legal representative), as a condition precedent to such payment to execute a release and receipt therefor.
10.8
No Liability
.
Participation in the Plan is entirely at the risk of each Participant. Neither the Company, any Affiliated Company, the Committee, the Trustee nor any
other person associated with the Plan shall have any liability for any loss or diminution in the value of Accounts, or for any
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failure of the Plan to effectively defer recognition of income or to achieve any Participant’s desired tax treatment or financial results.
10.9
Tax Withholding
.
All payments under the Plan shall be subject to federal, state and local income tax withholding and other legally required deductions.
10.10
Facility of Payment
.
If the Committee determines that a Participant or Beneficiary entitled to receive a payment under this Plan is (at the time such payment is to be made) a minor or physically, mentally or legally
incompetent to receive such payment and that another person or an institution has legal custody of such minor or incompetent individual, the Committee may cause payment to be made to such person or institution having custody of such Participant or
Beneficiary. Such payment, to the extent made, shall operate as a complete discharge of obligation by the Committee, the Company, the Trustee and the Trust.
10.11
Repayment of Awards
.
If any amount credited to a Deferral Account represents a
portion of an Award that is subsequently found to be repayable by the Participant to the Company or any Affiliated Company pursuant to the plan pursuant to which the Award was made, the amount of that credit shall nevertheless remain unaffected by
that repayment obligation, and the Participant shall make the required repayment out of his/her own funds.
10.12
Stock
Subject to the Plan
.
Subject to adjustment as provided below, the total number of shares of Stock reserved and available for issuance in
connection with the Plan is 848,598. Any Stock issued hereunder may consist, in whole or in part, of authorized and unissued shares or treasury shares. If there is a merger, reorganization, consolidation, recapitalization, share dividend, share
split, reverse split, combination of shares or other change in corporate structure of the Company affecting the Stock, such substitution or adjustment shall be made in the aggregate number of shares of Stock reserved for issuance under the Plan, and
in the number of shares deemed to be held in any Account, as may be approved by the Committee in its sole discretion.
10.13
The Addendum attached hereto entitled “Addendum to The Progressive Corporation Executive Deferred Compensation Plan (“Plan”) Re: Former Participants under the Midland Companies Amended and Restated Director and Executive Cash or
Deferred Compensation Plan” is hereby incorporated herein by reference and made a part hereof.
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IN WITNESS WHEREOF,
the Company has caused this instrument to be executed by its duly authorized
officers as of this 1st day of March, 2003.
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THE PROGRESSIVE CORPORATION
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By:
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Charles E. Jarrett
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Title:
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Chief Legal Officer
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Exhibit 4.4
FIRST AMENDMENT TO THE PROGRESSIVE CORPORATION
EXECUTIVE DEFERRED
COMPENSATION PLAN
(2003 Amendment and Restatement)
WHEREAS
, The Progressive Corporation Executive Deferred Compensation Plan is currently maintained pursuant to a
2003 Amendment and Restatement (“Plan”); and
WHEREAS
, it is deemed desirable to amend the
Plan further;
NOW, THEREFORE
, the Plan is hereby amended in the respects hereinafter set forth,
effective November 14, 2003:
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1.
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Article 1, Section 1.18 of the Plan is hereby amended and restated in its entirety to provide as follows:
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1.18 “
Gainsharing Award
” means any bonus or other incentive award payable with respect to a Plan Year under The
Progressive Corporation 2004 Gainsharing Plan, The Progressive Corporation 2004 Information Technology Incentive Plan, The 2004 Progressive Capital Management Bonus Plan, The Progressive Corporation 1999 Executive Bonus Plan (as amended on
January 31, 2003) or any other plan or program as may be designated by the Committee.
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2.
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Article 2, Section 2.3 of the Plan is hereby amended and restated in its entirety to provide as follows:
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2.3
Fixed Deferral Periods
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If an Eligible Executive wishes to defer receipt of all or a portion of any Award for a fixed period of time (“Fixed Deferral Period”), then his/her Deferral Agreement relating to such Award
shall specify that Fixed Deferral Period. Such Fixed Deferral Period shall not be less than three (3) years following (i) in the case of a deferral of all or a portion of a Gainsharing Award, the end of the Plan Year in which the
Gainsharing Award will be earned and (ii) in the case of a deferral of a Restricted Stock Award, the end of the Plan Year in which the last of the restrictions applicable to the Restricted Stock Award expire. In the case of a Restricted Stock
Award as to which restrictions expire in installments, the Fixed Deferral Period must end on the same date for all installments. Notwithstanding the preceding provisions of this Section 2.3, Eligible Executives may not elect a Fixed Deferral
Period with respect to the deferral of any Performance-Based Restricted Stock Award.
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3.
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Except as expressly provided in this Amendment, the terms and provisions of the Plan shall remain entirely unchanged and continue in full force and effect.
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IN WITNESS WHEREOF
, the undersigned has hereunto caused this Amendment to be executed by its duly
authorized representative effective as of the date set forth above.
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THE PROGRESSIVE CORPORATION
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By:
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/s/ Charles E. Jarrett
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Title:
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Vice President, Secretary and Chief Legal Officer
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Exhibit 4.5
SECOND AMENDMENT TO THE PROGRESSIVE CORPORATION
EXECUTIVE DEFERRED
COMPENSATION PLAN
(2003 Amendment and Restatement)
WHEREAS
, The Progressive Corporation Executive Deferred Compensation Plan is currently maintained pursuant to a 2003 Amendment and
Restatement and the First Amendment thereto (“Plan”); and
WHEREAS
, it is deemed desirable to amend the Plan
further;
NOW, THEREFORE
, the Plan is hereby amended in the respects hereinafter set forth:
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1.
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Effective December 31, 2003, The Table of Contents of the Plan, Line 1.34 is hereby amended to provide as follows:
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1.34
“Withdrawal Amount”
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2.
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Effective December 31, 2003, as it relates to distributions of Deferrals of Restricted Stock Awards and effective January 31, 2004 as it relates to
distributions of all other Deferrals, Article 3, Section 3.4 of the Plan is hereby amended and restated in its entirety to provide as follows:
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3.4
Form of Distribution
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All distributions shall be made in cash.
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3.
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Effective January 31, 2004, the last sentence in Article 3, Section 3.5 shall be deleted and replaced by the following sentence:
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The Withdrawal Amount shall be paid in cash.
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4.
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Except as expressly provided in this Amendment, the terms and provisions of the Plan shall remain entirely unchanged and continue in full force and effect.
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IN WITNESS WHEREOF
, the undersigned has hereunto caused this Amendment to be executed by its duly
authorized representative effective as of the date set forth above.
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THE PROGRESSIVE CORPORATION
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By:
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/s/ Charles E. Jarrett
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Title:
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Vice President & Secretary
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Exhibit 4.6
THIRD AMENDMENT TO THE PROGRESSIVE CORPORATION
EXECUTIVE DEFERRED
COMPENSATION PLAN
(2003 Amendment and Restatement)
WHEREAS
, The Progressive Corporation Executive Deferred Compensation Plan is currently maintained pursuant to a 2003 Amendment and
Restatement and the First and Second Amendments thereto (“Plan”); and
WHEREAS
, it is deemed desirable to
amend the Plan further;
NOW, THEREFORE
, the Plan is hereby amended in the respects hereinafter set forth:
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1.
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Effective March 17, 2005, Section 4.2 of the Plan is hereby amended and restated in its entirety to provide as follows:
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“4.2
Investment of Accounts
.
All credits to a Deferral Account of a Participant shall be deemed to be invested in such Investment Fund or Funds as the Participant shall elect from time to time in accordance with Article 5. The number
of shares of Stock to be credited to a Participant’s Account by virtue of a Participant’s initial election to invest a portion of a Deferral in the Company Stock Fund shall be determined on the date of the Deferral in accordance with such
procedures as the Committee shall establish, based on the weighted average price paid for all shares of Stock purchased by the Trustee and deposited in the Trust on that date pursuant to Article 6. Notwithstanding the preceding provisions of this
Section 4.2, (i) all credits to a Deferral Account of a Participant relating to a deferred Restricted Stock Award granted prior to March 17, 2005, shall be deemed to be invested in the Company Stock Fund until six (6) months and
one (1) day following the expiration of the restrictions applicable to such Award, unless otherwise determined by the Committee at or after the deferral of such Award, and, thereafter, the preceding provisions of this Section 4.2 shall
apply, and (ii) all credits to a Deferral Account of a Participant relating to a deferred Restricted Stock Award granted on or after March 17, 2005, shall be deemed to be invested in the Company Stock Fund until the balance of such
Deferral Account has been distributed or withdrawn in accordance with Article 3.”
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2.
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Effective March 17, 2005, the following is hereby added to the end of Section 5.4 of the Plan:
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“Notwithstanding the preceding provisions of this Section 5.4, each Deferral of a Restricted Stock Award granted on or after
March 17, 2005 shall be deemed to be invested in the Company Stock Fund until the Deferral Account to which such Deferral has been credited has been distributed or withdrawn in accordance with Article 3 of this Plan.”
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3.
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Except as expressly provided in this Amendment, the terms and provisions of the Plan shall remain entirely unchanged and continue in full force and effect.
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IN WITNESS WHEREOF
, the undersigned has hereunto caused this Amendment to be executed by its duly
authorized representative effective as of the date set forth above.
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THE PROGRESSIVE CORPORATION
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By:
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/s/ Charles E. Jarrett
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Title:
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Vice President & Secretary
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Exhibit 4.7
FOURTH AMENDMENT TO THE PROGRESSIVE CORPORATION
EXECUTIVE DEFERRED
COMPENSATION PLAN
(2003 Amendment and Restatement)
WHEREAS
, The Progressive Corporation Executive Deferred Compensation Plan is currently maintained pursuant to a 2003 Amendment and
Restatement and the First through Third Amendments thereto (“Plan”); and
WHEREAS
, it is deemed desirable to
amend the Plan further;
NOW, THEREFORE
, the Plan is hereby amended in the respects hereinafter set forth:
1. Effective September 1, 2005, Section 3.4 of the Plan is hereby amended and restated in its entirety to provide as follows:
3.4
Form of Distribution
.
Distributions of Deferrals of Restricted Stock Awards granted in 2005 and later years shall be made in Stock, with any fractional shares of Stock and any portion of such distribution that is derived from
cash dividends on deferred Restricted Stock Awards to be made in cash. All other Plan distributions shall be made in cash.
2.
Effective September 1, 2005, the last sentence in Article 3, Section 3.5 shall be deleted and replaced by the following provisions:
The provisions of Section 3.4 shall apply to all withdrawals under this Section 3.5.
3. Effective December 1, 2005, the following is hereby added to the Plan as new paragraph (k) of Section 2.2:
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“(k)
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Notwithstanding the preceding provisions of this Section 2.2 or any other provisions of the Plan, each Eligible Executive who elected to defer any portion of a
Gainsharing Award that became payable or will become payable in 2005 or 2006 or a Restricted Stock Award granted in 2005 may revoke such election. Such revocation shall be in writing on such forms as the Committee shall prescribe and must be
received by the Committee on or before December 30, 2005.
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4. Except as expressly provided in this
Amendment, the terms and provisions of the Plan shall remain entirely unchanged and continue in full force and effect.
IN
WITNESS WHEREOF
, the undersigned has hereunto caused this Amendment to be executed by its duly authorized representative effective as of the date set forth above.
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THE PROGRESSIVE CORPORATION
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By:
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/s/ Charles E. Jarrett
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Title:
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Vice President
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Exhibit 4.8
THE PROGRESSIVE CORPORATION EXECUTIVE
DEFERRED COMPENSATION PLAN
(2008 Amendment and Restatement)
TABLE OF CONTENTS
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PAGE NO.
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ARTICLE 1
DEFINITIONS
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1.1 “
Affiliated Company
”
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1
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1.2 “
Account
” or “
Deferral Account
”
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1
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1.3 “
Award
”
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1
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1.4 “
Beneficiary
”
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1
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1.5 “
Change in Control
”
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2
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1.6 “
Code
”
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2
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1.7 “
Committee
”
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2
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1.8 “
Company
”
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2
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1.9 “
Company Stock Fund
”
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2
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1.10 “
Deduction Limitation
”
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2
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1.11 “
Deferral Agreement
”
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2
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1.12 “
Deferral
”
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2
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1.13 “
Disabled
” and “
Disability
”
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2
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1.14 “
Distribution Event
”
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3
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1.15 “
Eligible Executive
”
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3
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1.16 “
ERISA
”
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3
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1.17 “
Fixed Deferral Period
”
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3
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1.18 “
Gainsharing Award
”
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3
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1.19 “
Incentive Plan
”
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3
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1.20 “
Investment Fund
”
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3
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1.21 “
Participant
”
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3
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1.22 “
Performance-Based Restricted Stock Award
”
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3
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1.23 “
Plan
”
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3
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1.24 “
Plan Year
”
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4
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1.25 “
Restricted Stock
”
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4
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1.26 “
Restricted Stock Award
”
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4
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1.27 “
Separation from Service
”
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4
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1.28 “
Stock
”
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4
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1.29 “
Termination of Employment
”
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4
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1.30 “
Time-Based Restricted Stock Award
”
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4
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1.31 “
Trust
”
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4
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1.32 “
Trust Agreement
”
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4
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1.33 “
Trustee
”
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4
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1.34 “
Unforeseeable Emergency
”
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4
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1.35 “
Valuation Date
”
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4
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ARTICLE 2
DEFERRAL OF AWARDS
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2.1
Method of Deferral
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5
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2.2
Deferral Agreement Provisions
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5
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2.3
Fixed Deferral Periods
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6
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ARTICLE 3
DISTRIBUTIONS AND WITHDRAWALS
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3.1
Date of Distribution
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6
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3.2
Method of Distribution
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7
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3.3
Amount of Distribution
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8
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3.4
Form of Distribution
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8
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3.5
Involuntary Cashouts
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8
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3.6
Special Distributions
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9
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ARTICLE 4
ACCOUNTS
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4.1
Establishment of Deferral Accounts
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9
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4.2
Investment of Accounts
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10
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4.3
Valuation of Investment Funds
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10
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4.4
Valuation of Accounts
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10
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4.5
Nature of Accounts
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11
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4.6
Account Statements
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11
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ARTICLE 5
INVESTMENT FUNDS
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5.1
Investment Funds
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11
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5.2
Investment Elections of Participants
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11
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5.3
Transfers
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11
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5.4
Special Rules for Restricted Stock
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12
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5.5
Nature of Investment Funds
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12
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5.6
Liquidation of Investment Funds
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12
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ARTICLE 6
TRUST
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6.1
Establishment of Trust
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12
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ARTICLE 7
PLAN OPERATION AND ADMINISTRATION
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7.1
Powers of Committee
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13
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7.2
Reliance on Tables, etc
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14
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7.3
Indemnification
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14
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7.4
Notices to Committee
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14
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ARTICLE 8
CLAIMS PROCEDURES
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8.1
Establishment of Claims Procedures
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14
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8.2
Claims Denials
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14
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8.3
Appeals of Denied Claims
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15
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8.4
Review of Appeals
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15
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8.5
Extensions
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16
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8.6
Disability Claims
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16
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ARTICLE 9
AMENDMENT AND TERMINATION OF THE PLAN
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9.1
Amendment
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16
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9.2
Termination
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17
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9.3
Liquidation of the Trust
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17
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ARTICLE 10
MISCELLANEOUS PROVISIONS
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10.1
Headings
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17
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10.2
Plan Not Contract of Employment
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18
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10.3
Severability
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18
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10.4
Prohibition on Assignment
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18
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10.5
Number and Gender
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18
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10.6
Governing Law
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18
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10.7
Satisfaction of Claims
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18
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10.8
No Liability
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19
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10.9
Tax Withholding
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19
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10.10
Facility of Payment
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19
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10.11
Repayment of Awards
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19
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10.12
Stock Subject to the Plan
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19
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THE PROGRESSIVE CORPORATION EXECUTIVE
DEFERRED COMPENSATION PLAN
(2008 Amendment and Restatement)
WHEREAS
, The Progressive Corporation
(“Company”) maintains The Progressive Corporation Executive Deferred Compensation Plan pursuant to a 2003 Amendment and Restatement and four amendments thereto; and
WHEREAS
, it is desired to amend and restate the Plan;
NOW, THEREFORE
, effective
January 1, 2008, the Plan is hereby amended and restated in its entirety to provide as follows:
GRANDFATHERED
PROVISIONS
GOVERNING CERTAIN PRIOR DEFERRALS
The Plan, as in effect on December 31, 2007, shall remain unchanged and continue in full force and effect, but only with respect to Awards that were earned and became vested on or before
December 31, 2004. For the period January 1, 2005 through December 31, 2007, the Plan was operated in compliance with Section 409A of the Code, pursuant to a reasonable interpretation of that section, as it was then in effect,
with respect to Awards that were earned or become vested on or after January 1, 2005.
AMENDED AND RESTATED PROVISIONS
Effective January 1, 2008, the Plan is hereby amended and restated in its entirety to provide as follows, but only with respect to
Awards that were earned or become vested on or after January 1, 2005.
ARTICLE 1
DEFINITIONS
1.1 “
Affiliated Company
” means any corporation included in the affiliated group of corporations as defined in Section 1504 of the Code (determined without regard to 1504(b)) of which
the Company is the common parent corporation.
1.2 “
Account
” or “
Deferral Account
” shall
have the meaning set forth in Section 4.1.
1.3 “
Award”
means a Gainsharing Award or Restricted Stock
Award.
1.4 “
Beneficiary
” means such person(s) as the Participant has designated. A Participant may change
his/her Beneficiary designation at any time. All Beneficiary designations (including changes) shall be made in writing on such forms as the Committee shall prescribe, and shall become effective only when received and accepted by the Committee;
provided, however, that a Beneficiary designation (including a change) received by the Committee after the designating Participant’s death shall be disregarded. In the absence of a Beneficiary designation, or if the designated Beneficiary is no
longer living or in existence at the time of the
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Participant’s death, all distributions payable from the Plan upon the Participant’s death shall be paid to the Participant’s estate.
1.5 “
Change in Control
” means a change in the ownership of the Company, a change in effective control of the Company, or
a change in the ownership of a substantial portion of the Company’s assets, each as determined in accordance with Section 409A of the Code.
1.6 “
Code
” means the Internal Revenue Code of 1986, as amended, and the regulations promulgated pursuant thereto.
1.7 “
Committee
” means the Compensation Committee of the Board of Directors of the Company, or any successor committee.
1.8 “
Company
” means The Progressive Corporation, an Ohio corporation, or its successors.
1.9 “
Company Stock Fund
” means an Investment Fund consisting of Stock and cash, and administered in accordance with such
rules regarding reinvestment of dividends and treatment of fractional shares as the Committee shall prescribe.
1.10
“
Deduction Limitation
” means the following described limitation on a payment that may otherwise be distributable under the Plan. If the Committee determines in good faith that there is a reasonable anticipation that any compensation
to a Participant for a taxable year of the Company would not be deductible by the Company solely by reason of the limitation under Code Section 162(m), the Committee may elect to defer all or any portion of a distribution otherwise payable to
the Participant under this Plan to the extent necessary to preserve the Company’s deduction under Code Section 162(m) for such taxable year; provided, however, that if the Committee elects to defer a portion of a distribution in respect of
a Participant pursuant to this Section 1.10, then the Committee shall also defer all remaining portions of such distribution to the extent permissible under this Section 1.10. Any amounts deferred pursuant to this limitation shall continue
to be deemed to be invested as provided in Article 5. The amounts so deferred (subject to investment gains and losses) shall be distributed to the Participant or his or her Beneficiary (if the Participant dies) no later than the last day of the Plan
Year in which the Committee determines in good faith that the deductibility of compensation paid or payable to the Participant for the taxable year of the Company during which the distribution is made will not be limited by Code Section 162(m),
or the last day of the Plan Year in which the Participant experiences a Separation from Service (or, if later, no later than six months and one day following the date of such Separation from Service).
1.11 “
Deferral Agreement
” means an agreement entered into by an Eligible Executive pursuant to Article 2.
1.12 “
Deferral
” means an amount credited to a Deferral Account pursuant to a Deferral Agreement.
1.13 “
Disabled” and “Disability
” means that a Participant is, by reason of any medically determinable physical
or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving short-
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term and/or long-term disability benefits for a period of not less than three (3) months under The Progressive Health, Life and Disability Benefits Plan, or any similar successor plan.
1.14 “
Distribution Event
” means, as to each Participant, the earliest of the following events:
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(i)
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the Participant’s death;
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(ii)
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the Participant’s Termination of Employment; or
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1.15
“
Eligible Executive
” means any executive of the Company or any Affiliated Company who has a target Gainsharing Award of 35% or more of salary or who is designated in writing as an Eligible Executive by the Committee, excluding,
however, individuals who are not residents of the United States or are not working at a location in the United States.
1.16
“
ERISA
” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated pursuant thereto.
1.17 “
Fixed Deferral Period
” shall have the meaning set forth in Section 2.3.
1.18 “
Gainsharing Award
” means any bonus or other incentive award payable with respect to a Plan Year under any plan that expressly allows deferrals under this Plan, including The
Progressive Corporation Gainsharing Plan, The Progressive Corporation Information Technology Incentive Plan, The Progressive Capital Management Bonus Plan, The Progressive Corporation Executive Bonus Plan and any other plan or program as may be
designated by the Committee.
1.19
“Incentive Plan”
means The Progressive Corporation 2003 Incentive Plan, as
amended from time to time.
1.20 “
Investment Fund
” means a device established from time to time by the
Committee pursuant to Section 5.1 that is used to calculate gains and losses in amounts deferred by Participants under the Plan.
1.21 “
Participant
” means an Eligible Executive who has deferred receipt of a portion of any Award pursuant to a Deferral Agreement. Participation shall begin on the date that a Deferral
Account is established in the name of the Participant and shall end on the date that the Participant dies or receives a distribution of the balance of all his/her Deferral Accounts.
1.22 “
Performance-Based Restricted Stock Award”
means an Award of “Performance-Based Restricted Stock”, as
defined in the Incentive Plan.
1.23 “
Plan
” means The Progressive Corporation Executive Deferred Compensation
Plan (2008 Amendment and Restatement), as set forth herein and as it may be amended from time to time.
-3-
1.24 “
Plan Year
” means 2008 and each subsequent calendar year.
1.25 “
Restricted Stock
” means an award of shares of Stock that is made pursuant to the Incentive Plan and is subject to
restrictions.
1.26
“Restricted Stock Award
” means an award of Restricted Stock under the Incentive Plan.
1.27
“Separation from Service
” shall have the meaning set forth in Section 409A of the Code.
1.28 “
Stock
” means the Common Shares, $1.00 par value, of the Company.
1.29 “
Termination of Employment
” means the voluntary or involuntary cessation of a Participant’s employment with
the Company and all Affiliated Companies as a result of a Separation from Service for any reason other than death, Disability or a military leave, sick leave or other leave of absence that is reasonably expected to last for a period of less than six
months, or any leave of absence for which the Participant retains a right to reemployment either by statute or by contract with the Company.
1.30 “
Time-Based Restricted Stock Award
” means an Award of “Time-Based Restricted Stock”, as defined in the Incentive Plan.
1.31 “
Trust
” shall mean the trust maintained pursuant to the Trust Agreement and known as The Progressive Corporation
Executive Deferred Compensation Trust.
1.32 “
Trust Agreement
” shall mean the agreement of trust between the
Company and the Trustee executed in furtherance of the Plan, as the same may be amended from time to time.
1.33
“
Trustee
” shall mean the person selected from time to time by the Company to serve as trustee under the Trust Agreement.
1.34 “
Unforeseeable Emergency”
shall have the meaning set forth in Section 409A of the Code.
1.35 “
Valuation Date
” shall mean each day that the New York Stock Exchange is open for trading.
-4-
ARTICLE 2
DEFERRAL OF AWARDS
2.1
Method of Deferral
.
Each Eligible Executive may elect to defer receipt of all or a portion of his/her Gainsharing Award and/or the entirety of any of his/her Restricted Stock
Awards in respect of any Plan Year by signing a Deferral Agreement and delivering it to the Committee or by completing a Deferral Agreement and transmitting it to the Committee via the Company’s electronic mail system. If a Gainsharing Award is
payable in installments, each installment, whether or not payable in the same Plan Year, shall be subject to the same Deferral Agreement. Any taxes or other amounts due with respect to any deferred Gainsharing Award or Restricted Stock Award shall
be paid by the Eligible Executive to the Company no later than the date specified by the Company.
2.2
Deferral Agreement
Provisions
.
Each Deferral Agreement must satisfy all of the following requirements:
(a) it must be in the form specified by the Committee;
(b) it must be delivered in writing, or transmitted electronically, to the Committee in accordance with such procedures as the Committee may establish from time to time.
(c) it must be irrevocable;
(d) as to deferrals of Gainsharing Awards, it must apply to only one such Gainsharing Award;
(e) as to deferrals of Restricted Stock Awards, it must apply to all Time-Based Restricted Stock Awards granted during the Plan Year, all Performance-Based Restricted Stock Awards granted during the Plan
Year, or both;
(f) it must be delivered to the Committee in writing, or received by the Committee via the Company’s
electronic mail system, (i) as to each Gainsharing Award, prior to the Plan Year in which the Gainsharing Award will be earned, and (ii) as to each Restricted Stock Award, prior to the Plan Year the Restricted Stock Award is granted;
(g) as to deferrals of Gainsharing Awards, it must specify the percentage of the Eligible Executive’s Gainsharing Award
to be deferred, which percentage shall not be less than ten percent (10%). The same deferral percentage shall apply to each installment of a Gainsharing Award covered by the Deferral Agreement. However, a Deferral Agreement may provide for the
deferral of a percentage of that portion of a Gainsharing Award that exceeds a specified gross dollar amount, which percentage shall not be less than ten percent (10%). Notwithstanding the preceding provisions of this Section 2.2(g), no
Deferral shall be less than such dollar amount as the Committee may specify from time to time;
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(h) as to deferral of a Restricted Stock Award, it must apply to the entirety of each
Time-Based Restricted Stock Award granted during the Plan Year, the entirety of each Performance-Based Restricted Stock Award granted during the Plan Year, or both;
(i) it must specify whether the balance of the Deferral Account to be established pursuant to that Deferral Agreement will be distributed in a lump sum, in three (3) annual installments, in five
(5) annual installments, or in ten (10) annual installments;
(j) it must specify the Fixed Deferral Period, if any,
elected by the Eligible Executive pursuant to Section 2.3 of this Plan; and
(k) it must contain such other provisions,
conditions and limitations as may be required by the Company or the Committee.
2.3
Fixed Deferral Periods
.
If an Eligible Executive wishes to defer receipt of all or a portion of any Award for a fixed period of time (“Fixed Deferral Period”), then
his/her Deferral Agreement relating to such Award shall specify that Fixed Deferral Period. Such Fixed Deferral Period shall not be less than three (3) years following (i) in the case of a deferral of all or a portion of a Gainsharing
Award, the end of the Plan Year in which the Gainsharing Award will be earned and (ii) in the case of a deferral of a Restricted Stock Award, the end of the Plan Year in which the last of the restrictions applicable to the Restricted Stock
Award expires. In the case of a Restricted Stock Award as to which restrictions expire in installments, the Fixed Deferral Period must end on the same date for all installments. Notwithstanding the preceding provisions of this Section 2.3,
Eligible Executives may not elect a Fixed Deferral Period with respect to the deferral of any Performance-Based Restricted Stock Award.
ARTICLE 3
DISTRIBUTIONS AND WITHDRAWALS
3.1
Date of Distribution
.
Distribution of the balance of each Deferral Account of a Participant shall be made or shall commence within thirty (30) days following the earlier
of (i) the date the Committee receives notice that a Distribution Event has occurred, or (ii) the date on which the Fixed Deferral Period, if any, applicable to such Account expires. Notwithstanding the preceding provisions, each
distribution made on account of a Participant’s Termination of Employment shall not be made or commence until six (6) months after the date of such Termination of Employment. If distribution is to be made in installments, payment of
installments following the first installment shall be made within thirty (30) days following each anniversary of the date referred to in clause (i) or (ii) of the first sentence of this Section 3.1 or the date referred to in the
immediately preceding sentence, as applicable, until all installments have been paid.
The Committee, in its sole discretion, may also permit
distribution of the entire balance of all of a Participant’s Deferral Accounts to be made within thirty (30) days following the date the Participant is determined by the Committee to be Disabled. If the Committee approves such a
-6-
Disability distribution, no further Deferrals shall be made with respect to the Disabled Participant following the date of the Committee’s approval, and each Deferral Agreement to which such
Participant is then a party shall be of no further effect.
The Committee in its sole discretion may also permit distribution of all or a
portion of the balance of a Participant’s Deferral Accounts to be made following the Committee’s receipt of written notice that an Unforeseeable Emergency has occurred with respect to such Participant. Such distribution shall be limited to
the amount reasonably necessary to satisfy the need created by such Unforeseeable Emergency, plus any applicable taxes. If the Committee approves such an Unforeseeable Emergency distribution, no further Deferrals shall be made with respect to such
Participant following the date of the Committee’s approval, and each Deferral Agreement to which such Participant is then a party shall be of no further effect. To the extent permitted under Section 409A of the Code, a Participant who
receives a distribution due to an Unforeseeable Emergency may enter into a new Deferral Agreement in any Plan Year following the Plan Year in which the Participant received such distribution.
Notwithstanding the preceding provisions of this Section 3.1, a Participant may elect to change the date any distribution on account of expiration of a Fixed Deferral Period is to be made or
commence. Each such election change must be made in writing and on such forms as the Committee shall specify. Each such election change must be delivered to the Committee at least one (1) year prior to the expiration of the Fixed Deferral
Period and shall delay the payment or commencement of distributions to the Participant for a period of at least five (5) years following the date such distribution otherwise would have been made or would have commenced. In the case of a
distribution to be made in installments, the provisions of this paragraph shall apply to each installment payment as if each such installment payment were a separate distribution.
Participants desiring to receive a distribution due to disability or Unforeseeable Emergency, shall submit a written request to the Committee in such form as it shall specify.
3.2
Method of Distribution
.
Each distribution of all or a portion of the balance of a Deferral Account shall be made to the Participant, except that any such distribution made on account of the Participant’s death shall be made
to the Participant’s Beneficiary. Each distribution made on account of the Participant’s death, Disability, Unforeseeable Emergency or a Change in Control shall be paid in a lump sum. Each distribution made on account of the
Participant’s Termination of Employment or expiration of a Fixed Deferral Period shall be paid in either a lump sum or installments, as specified in the applicable Deferral Agreement.
If a Participant elects to receive payment in installments and dies prior to payment of all installments, the balance remaining unpaid at his/her death shall be paid to his/her Beneficiary in a lump sum.
Installment payments shall be paid in three (3) annual installments, in five (5) annual installments or in ten (10) annual
installments, as specified in the applicable Deferral Agreement.
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Notwithstanding the preceding provisions of this Section 3.2, a Participant may elect to change the
method of distribution elected in respect of any distribution to be made on account of Termination of Employment or expiration of a Fixed Deferral Period to any of the four permissible distribution options set forth in Section 2.2(i). Such
election change shall not take effect until the first anniversary of the date it is delivered to the Committee. Each such election change must be made in writing and on such forms as the Committee shall specify. Any election change with respect to a
Fixed Deferral Period must be delivered to the Committee at least one (1) year prior to the expiration of the Fixed Deferral Period. In addition, any election change with respect to a Termination of Employment or Fixed Deferral Period shall
delay the payment or commencement of distributions to a Participant for a period of at least five (5) years following the date such distribution otherwise would have been made or would have commenced.
3.3
Amount of Distribution
.
The amount of each lump sum payment shall be equal to the balance of the Deferral Account, as of the Valuation Date immediately preceding the date of any distribution from the Plan. In the case of a lump
sum payment made upon the occurrence of an Unforeseeable Emergency, the amount shall be such portion of such balance as the Committee, in its sole discretion, shall determine, as being reasonable necessary to meet the need created by such
Unforeseeable Emergency, plus any applicable taxes. The amount of each installment payment shall be equal to the balance of the Deferral Account as of the Valuation Date immediately preceding the date of payment multiplied by a fraction, the
numerator of which is one and the denominator of which is the number of years remaining in the period over which installments are to be paid. Installment distributions to be made in Stock shall be rounded to the nearest whole share. Notwithstanding
anything in the Plan to the contrary, all distributions, except those made on account of a Change in Control, are subject to the Deduction Limitation.
3.4
Form of Distribution
.
Distributions of Deferrals of Restricted Stock Awards granted in
2005 and later years shall be made in Stock, with any fractional shares of Stock and any portion of such distribution that is derived from cash dividends on deferred Restricted Stock Awards to be made in cash. All other Plan distributions shall be
made in cash.
3.5
Involuntary Cashouts
.
If, at any time during a Plan Year, the aggregate balance of a Participant’s Deferral Accounts under the Plan is less than the applicable dollar amount under Section 402(g)(1)(B) of the Code for
that Plan Year, the Committee, in its sole discretion, may distribute such aggregate balance to such Participant in a lump sum.
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3.6
Special Distributions
.
Notwithstanding anything in this Plan to the contrary,
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(i)
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The Committee, in its sole discretion, may make payment of all or a portion of one or more Participant’s Deferral Accounts at any time that the Plan fails to meet
the requirements of Section 409A of the Code. Such payment may not exceed the amount required to be included in income of such Participant(s) as a result of such failure; and
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(ii)
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The Committee, in its sole discretion, may distribute all or any portion of the Deferral Accounts of one or more Participants to reflect payment of state, local or
foreign tax obligations or obligations imposed by the Federal Insurance Contributions Act (FICA), including the additional tax at source on wages, arising from participation in the Plan that apply to an amount deferred under the Plan before the
amount is paid or made available to the Participant. Such payment to a Participant may not exceed the amount of such taxes due as a result of such Participant’s participation in the Plan. Such payment may be made to the Participant in the form
of withholding pursuant to provisions of applicable state, local or foreign law, or by distribution directly to the Participant.
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ARTICLE 4
ACCOUNTS
4.1
Establishment of Deferral Accounts
.
The Committee shall establish a Deferral Account in the name of each Participant for each Gainsharing Award, or portion thereof, and each Restricted Stock Award that is the subject of a Deferral
Agreement. As to Deferrals of Gainsharing Awards, each such Account shall be established as of the first date that such Gainsharing Award, or portion thereof, otherwise would have been paid to the Participant. As to deferrals of Restricted Stock
Awards, each such Account shall be established as of the date that the restrictions applicable to such Restricted Stock Award expire. In the case of a Restricted Stock Award as to which the restrictions expire at different times for different
portions of the Award, such Account shall be established as of the date the first of such restrictions expires. Each Deferral Account shall be credited with the deferred portion of such Award at the time the Account is established, or, in the case
of a Restricted Stock Award as to which the restrictions expire at different times for different portions of the Award, from time-to-time as such restrictions expire. Thereafter, all Deferral Accounts shall be valued and administered as provided in
this Article. Notwithstanding anything in the Plan to the contrary, the Trustee may combine two (2) or more of any Participant’s Deferral Accounts into a single Account, if the Deferral Accounts to be combined (i) are subject to Fixed
Deferral Periods ending on the same date or (ii) are not subject to Fixed Deferral Periods at all.
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4.2
Investment of Accounts
.
All credits to a Deferral Account of a Participant shall be deemed to be invested in such Investment Fund or Funds as the Participant shall elect from time to time in accordance with Article 5. The number
of shares of Stock to be credited to a Participant’s Account by virtue of a Participant’s initial election to invest a portion of a Deferral in the Company Stock Fund shall be determined on the date of the Deferral in accordance with such
procedures as the Committee shall establish, based on the weighted average price paid for all shares of Stock purchased by the Trustee and deposited in the Trust on that date pursuant to Article 6. If a Participant has any portion of a Deferral in
the Company Stock Fund on the record date for a dividend to be paid on the Company’s Stock, an amount determined at a per share rate equivalent to such dividend shall be credited to the Participant’s Account as of the payment date for such
dividend, and such amount shall be deemed to be reinvested in the Company Stock Fund. Notwithstanding the preceding provisions of this Section 4.2, (i) all credits to a Deferral Account of a Participant relating to a deferred Restricted
Stock Award granted prior to March 17, 2005 (and dividends thereon), shall be deemed to be invested in the Company Stock Fund until six (6) months and one (1) day following the expiration of the restrictions applicable to such Award,
unless otherwise determined by the Committee at or after the deferral of such Award, and, thereafter, the preceding provisions of this Section 4.2 shall apply, and (ii) all credits to a Deferral Account of a Participant relating to a
deferred Restricted Stock Award granted on or after March 17, 2005 (including dividends thereon), shall be deemed to be invested in the Company Stock Fund until the balance of such Deferral Account has been distributed in accordance with
Article 3.
4.3
Valuation of Investment Funds
.
As of each Valuation Date, the Trustee shall compute the value of each Investment Fund from which shall be determined the net gain or loss of such Investment Fund since the immediately preceding Valuation
Date. The net gain or loss shall include any unrealized and realized profits and losses, and any dividends, interest or other income and any expenses which are due or accrued, but shall not include distributions from such Investment Fund. In
determining the value of each Investment Fund, the Trustee shall use the following values: securities listed on any nationally recognized securities exchange shall be valued at the closing price reported on any such exchange on the Valuation Date,
or, if there were no sales on the Valuation Date, then at the last quoted bid price on the Valuation Date. Securities not listed on a recognized securities exchange shall be valued at the last quoted closing bid price on the Valuation Date. A unit
of participation in a common trust fund maintained by the Trustee or a share in a mutual fund shall be valued at the unit value, or share price respectively, in effect at the close of business on the Valuation Date. Securities with respect to which
there were no available sale prices or bid prices on the Valuation Date, and any other investments, shall be valued at prices deemed by the Trustee to represent the fair market value thereof on the Valuation Date.
4.4
Valuation of Accounts
.
As of each Valuation Date, the net gain or loss of each Investment Fund shall be allocated among the appropriate Deferral Accounts in accordance with such procedures as the Committee shall establish,
which procedures shall apply uniformly to all Participants.
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4.5
Nature of Accounts
.
All credits to each Deferral Account of each Participant shall be recorded as a liability on the books of the Company. However, no Participant or Beneficiary shall have any proprietary rights of any
nature with respect to any Account of any Participant or with respect to any funds, securities or other property owned by the Company or any Affiliated Company that is held in the Trust or that otherwise may be represented from time to time by
Investment Funds. All payments under the Plan shall be made from the Trust or from the Company’s general funds and in no event shall any Participant or Beneficiary have any claims or rights to any payment hereunder that are superior to any
claims or rights of any general creditor of the Company.
4.6
Account Statements
.
The Committee will furnish each Participant, or make available to each Participant on-line, periodic statements of the value of each of his/her Deferral
Accounts.
ARTICLE 5
INVESTMENT FUNDS
5.1
Investment Funds
.
The Committee shall establish and maintain the Company Stock Fund and such other Investment Funds as are specified from time to time by the Company. In
this regard, the Company may choose to offer as Investment Funds any investment vehicles, including without limitation: (i) securities issued by investment companies advised by affiliates of the Trustee, (ii) guaranteed investment
contracts recommended by the Trustee, and (iii) collective investment trusts maintained by the Trustee.
5.2
Investment Elections of Participants
.
Each Participant shall make an investment election in the manner prescribed by the Committee,
directing the manner in which his/her Deferrals shall be deemed to be invested. Each investment election must be made at the time the applicable Deferral Agreement is signed and may be changed upon notice to the Committee at any time prior to the
deemed deposit of the applicable Deferral into one or more Investment Funds. Such elections and notices to the Committee must be made in writing or through the Company’s electronic mail system in accordance with such procedures as the Committee
may prescribe. Each Participant may make a separate investment election for each of his/her Deferral Accounts. Each investment election shall specify that Deferrals shall be deemed to be deposited in one or more of the Investment Funds in
percentages that are each an integral multiple of 1% and that in the aggregate equal 100% of the Deferral.
5.3
Transfers
.
Amounts deemed to be invested in an Investment Fund pursuant to this Section may be transferred to another Investment Fund
in accordance with such procedures and limitations as the Committee shall prescribe. The procedures and limitations prescribed by the Committee
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may include, without limitation, provisions which (i) limit transfers to specified dollar amounts or percentages (ii) limit the number of transfers that each Participant may make each
Plan year (iii) limit the dates as of which transfers may become effective and (iv) impose waiting periods or other restrictions in connection with multiple transfers in and out of the same Investment Fund. All such procedures and
limitations shall apply uniformly to similarly situated Participants.
5.4
Special Rule for Restricted Stock Awards
.
Notwithstanding the preceding provisions of this Article 5, each Deferral of a Restricted Stock Award shall be deemed to be invested in the
Company Stock Fund until six (6) months and one (1) day following the date the restrictions applicable to such Restricted Stock Award expire, unless otherwise determined by the Committee at or after the deferral of such Award. Thereafter,
the Participant may transfer all or a portion of such Deferral to another Investment Fund in accordance with the preceding provisions of this Article 5. Notwithstanding the preceding provisions of this Section 5.4, each Deferral of a Restricted
Stock Award granted on or after March 17, 2005 shall be deemed to be invested in the Company Stock Fund until the Deferral Account to which such Deferral has been credited has been distributed in accordance with Article 3 of this Plan.
5.5
Nature of Investment Funds
.
Notwithstanding anything in the Plan, Trust or any Deferral Agreement to the contrary, no Participant shall have any rights or interests in any particular funds, securities or property of the Company, any
Affiliated Company or the Trust, or in any investment vehicle in which Deferrals are deemed to be invested, by virtue of any investment election made by the Participant under the Plan, any deemed investment under the Plan or any transactions engaged
in by the Trust. Each Deferral Account, however, shall be credited/charged in accordance with Article 4 with gains/losses as if the Participant in fact had made a corresponding actual investment.
5.6
Liquidation of Investment Funds
.
If any Investment Fund is liquidated or otherwise ceases to exist without a successor, then that portion of each Account balance that previously has been deemed to have been invested in that Investment
Fund shall be deemed to have been transferred to an Investment Fund consisting of money market instruments, or, if none, such other Investment Fund selected by the Committee.
ARTICLE 6
TRUST
6.1
Establishment of Trust
.
The Company shall establish and maintain a Trust to provide a source of funds to assist the Company in meeting its liabilities under the Plan. Within thirty (30) days following the end of
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each Plan Year ending after the Trust has become irrevocable pursuant to the Trust Agreement, the Company shall be required to irrevocably deposit additional cash or other property to the Trust
in an amount sufficient to pay each Participant or Beneficiary the benefits payable pursuant to the terms of the Plan as of the close of that Plan year.
The principal of the Trust, and any earnings thereon, shall be held separate and apart from other funds of Company and shall be used exclusively for the uses and purposes of Plan Participants and general
creditors of the Company as set forth herein and in the Trust Agreement. Plan Participants and their Beneficiaries shall have no preferred claim on, or any beneficial ownership interest in, any assets of the Trust. Any rights created under the Plan
and the Trust Agreement shall be mere unsecured contractual rights of Plan Participants and their Beneficiaries against Company. Any assets held by the Trust will be subject to the claims of the Company’s general creditors under federal and
state law in the event of Insolvency, as defined in the Trust Agreement. All assets deposited in the Trust shall be held, administered and distributed by the Trustee in accordance with the Trust Agreement. The Company shall pay directly, or
reimburse the Trustee for, all taxes due in respect of any income or gains on Trust assets.
ARTICLE 7
PLAN OPERATION AND ADMINISTRATION
7.1
Powers of Committee
.
The Committee will have full power to administer the Plan. Such
power includes, but is not limited to, the following authority:
(a) to make and enforce such rules and regulations as it deems
necessary or proper for the efficient administration of the Plan;
(b) to interpret the Plan and to decide all matters arising
thereunder, including the right to resolve or remedy any ambiguities, errors, inconsistencies or omissions. All such interpretations shall be final and binding on all parties;
(c) to compute the amounts payable to any Participant or Beneficiary or other person in accordance with the provisions of the Plan;
(d) to authorize disbursements from the Trust or the Plan;
(e) to keep such
records and submit such filings, elections, applications, returns or other documents or forms as may be required under ERISA, the Code or other applicable law;
(f) to appoint such agents, counsel, accountants and consultants as may be desirable to assist in administering the Plan;
(g) To exercise the other powers that are expressly granted to it herein, or that are impliedly necessary for it to carry out any of its responsibilities hereunder; and
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(h) by written instrument, to delegate any of the foregoing powers.
7.2
Reliance on Tables, etc
.
The Committee will be entitled, to the extent permitted by law, to rely conclusively on all tables, valuations, certificates, opinions and reports which are furnished by any accountant, Trustee, counsel
or other expert retained by the Committee to assist it in administering the Plan.
7.3
Indemnification
.
In addition to whatever rights of indemnification to which employees, officers and directors of the Company and the Affiliated Companies may be entitled
under the articles of incorporation, regulations or bylaws of the Company or the Affiliated Companies, under any provision of law, or under any other agreement, the Company shall satisfy any liabilities actually and reasonably incurred by any such
employee, officer or director, including expenses, attorneys’ fees, judgments, fines and amounts paid in settlement, in connection with any threatened, pending, or completed action, suit, or proceeding which is related to the exercise or
failure to exercise by such person or persons of any of the powers, authority, responsibilities, or discretion of the Company, the Affiliated Companies or the Committee provided under the Plan or the Trust Agreement, or reasonably believed by such
person or persons to be provided thereunder, and any action taken by such person or persons in connection therewith.
7.4
Notices to Committee
.
The Committee shall designate one or more addresses to which notices and other communications to the Committee
shall be sent. No notice or other communication shall be considered to have been given to or received by the Committee until it has been delivered to the Committee’s attention at one of such designated addresses.
ARTICLE 8
CLAIMS PROCEDURES
8.1
Establishment of Claims Procedure
The Committee shall establish reasonable procedures
under which a claimant, who may be a Participant, or Beneficiary, or his/her duly authorized representative, may present a claim for benefits under this Plan.
8.2
Claims Denials
Unless such claim is allowed in full by the Committee, written notice
of the denial shall be furnished to the claimant within ninety (90) days (which may be extended by a period not to exceed an additional ninety (90) days if special circumstances so require and written notice to the claimant is given prior
to the expiration of the initial ninety (90) day period describing such circumstances and indicating the date by which the Committee expects to render its
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determination) setting forth the following in a manner calculated to be understood by the claimant:
(i) The specific reason(s) for the denial;
(ii) Specific
reference(s) to any pertinent provision(s) of the Plan or rules promulgated pursuant thereto on which the denial is based;
(iii) A description of any additional information or material as may be necessary to perfect the claim, together with an explanation of why it is necessary;
(iv) A description of the Plan’s claims review procedures and the time limits applicable to such procedures,
including a statement of the claimant’s right to bring a civil action under Section 502(a) of ERISA following an adverse benefit determination on review; and
(v) An explanation of the steps to be taken if the claimant wishes to resubmit his/her claim for review.
8.3
Appeals of Denied Claims
Within a reasonable period of time after the denial of the claim, but in any event, not to be more than sixty (60) days, the claimant or his/her duly authorized representative may make written
application to the Committee for a review of such denial. The claimant or his/her representative, may, upon request and free of charge, review or receive copies of documents, records and other information relevant to the claimant’s claim for
benefits, and may submit written comments, documents, records and other information relating to the claim for benefits.
8.4
Review of Appeals
If an appeal is timely filed, the Committee shall conduct a full and fair review of the claim and mail or deliver to
the claimant its written decision within sixty (60) days after the claimant’s request for review (which may be extended by a period not to exceed an additional sixty (60) days if special circumstances or a hearing so require and
written notice to the claimant is given prior to the expiration of the initial sixty (60) day period describing such special circumstances and indicating the date by which the Committee expects to render its determination). In conducting its
review, the Committee shall take into account all comments, documents, records and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit
determination. The Committee’s decision on review shall:
(i) Be written in a manner calculated to be
understood by the claimant;
(ii) State the specific reason(s) for the decision;
(iii) Make specific reference to pertinent provision(s) of the Plan;
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(iv) State that the claimant is entitled to receive, upon request and free
of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claimant’s claim for benefits; and
(v) Include a statement of the claimant’s right to bring a civil action under Section 502(a) of ERISA.
8.5
Extensions
If a period of time is extended, as permitted under Sections 8.2 and 8.4
above, due to a claimant’s failure to submit information to decide a claim, the period for making the benefit determination on review shall be tolled from the date on which the notification of the extension is sent to the claimant until the
date on which the claimant responds to the request for additional information.
8.6
Disability Claims
.
Claims involving a determination of Disability or payments related to Disability shall comply with and follow the applicable Department of Labor
regulations. Upon the filing of an initial Disability-related claim, the Committee will make a decision regarding a Participant’s claim within 45 days of such Participant’s request, unless special circumstances would make rendering a
decision within the 45-day period unfeasible. The Committee will notify the Participant of its need to extend the decision deadline and may extend the deadline for up to two additional 30-day periods, if necessary. The Participant will be permitted
to appeal any adverse initial determination up to 180 days after the determination is issued. The Committee will make a decision within a reasonable period of time after receiving any appeal but in no event later than 45 days after a
Participant’s appeal is received unless special circumstances would make rendering a decision within the 45-day period unfeasible. The Committee will notify a Participant of any need to extend the decision deadline and may extend the deadline
for no more than an additional 45 days. More details about the Disability retirement procedure are available from the Committee.
ARTICLE 9
AMENDMENT AND TERMINATION OF THE PLAN
9.1
Amendment
.
The Company may amend the Plan and Trust Agreement in any respect at any
time for any reason by action of the Committee without liability to any Participant, Beneficiary or other person for any such amendment or for any other action taken pursuant to this Section 9.1, provided that any amendment required to be
approved by the Company’s shareholders pursuant to Section 162(m) of the Code shall not be effective until approved by the Company’s shareholders in accordance with the requirements of Section 162(m) and further provided that no
such amendment shall be made retroactively in a manner that would deprive any Participant
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of any rights or benefits which have accrued to his/her benefit under the Plan as of the date such amendment is proposed to be effective, unless such amendment is necessary to comply with
applicable law.
9.2
Termination
.
The Company may terminate the Plan at any time for any reason by action of the Committee without any liability to any Participant, Beneficiary or other person for any such termination or for any other
action taken pursuant to this Section 9.2. Following termination of the Plan, and notwithstanding the provisions of any Deferral Agreement entered into prior to such termination, no additional Deferrals may be made hereunder, but all existing
Accounts shall continue to be administered in accordance with the Plan, as in effect immediately prior to termination, and shall be distributed in accordance with such terms of the Plan and the applicable Deferral Agreements, unless and until the
Company elects to accelerate distribution as provided below. At any time on or after the effective date of termination of the Plan, the Company, in its sole discretion, may elect to accelerate the distribution of the entire balance of each
Participant’s Accounts to the extent permitted under Section 409A of the Code. Such accelerated distributions shall be made (i) at a time selected by the Company in accordance with Section 409A of the Code and (ii) in a lump
sum based on the value of the Accounts, determined as of the Valuation Date immediately preceding the date of distribution. Upon the completion of distributions to all Participants or Beneficiaries, as the case may be, no Participant, Beneficiary or
person claiming under or through them, will have any claims in respect of the Plan.
9.3
Liquidation of the Trust
.
The Trust shall continue in existence after the termination of the Plan for such period of time as may be required to complete the liquidation
thereof in accordance with the terms of this Article 9.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1
Headings
.
The headings of the Plan have been inserted for convenience of reference
only and are not to be deemed controlling in any constructions of the provisions herein (other than with respect to defined terms).
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10.2
Plan Not Contract of Employment
.
The existence of the Plan shall not create, evidence or change any contract of employment with any Participant. The right of the Company and all
Affiliated Companies to take corrective, disciplinary or other action with respect to their employees, including terminating their respective employment at any time for any reason, shall not be affected by any provision of this Plan, and the Company
and the Affiliated Companies will not be deemed responsible to provide continuing employment for any reason, at any time solely by reason of this Plan.
10.3
Severability
.
If any provision of the Plan shall be invalid, such provision shall be
fully severable, and the remainder of the Plan and the application thereof shall not be affected thereby.
10.4
Prohibition
on Assignment
.
No right or interest under the Plan of any Participant or Beneficiary shall be subject at any time or in any manner to
anticipation, alienation, assignment (either at law or in equity), encumbrance (as security or otherwise), garnishment, levy, execution, or other legal or equitable process, and no Participant or Beneficiary shall have the power at any time or in
any manner to anticipate, transfer, assign (either at law or in equity), alienate, or subject to attachment, garnishment, levy, execution or other legal or equitable process, or in any way encumber, such Participant’s or Beneficiary’s
rights or interests under the Plan, and any attempt to do so shall be void; provided, however, that the Company shall have the unrestricted right to set off against or recover out of any payments due a Participant or Beneficiary at the time such
payments would have otherwise been payable hereunder, any amounts owed the Company or any Affiliated Company by such Participant or Beneficiary.
10.5
Number and Gender
.
Any use of the singular shall be interpreted to include the plural
and the plural the singular. Any use of the masculine, feminine or neuter shall be interpreted to include the masculine, feminine and neuter, as the context shall require.
10.6
Governing Law
.
To the extent not preempted by Federal law, the provisions of the Plan
shall be construed, regulated and administered under the laws of the State of Ohio.
10.7
Satisfaction of Claims
.
Any payment to any Participant or Beneficiary in accordance with the terms of the Plan shall, to the extent thereof, be in full satisfaction
of all claims hereunder, whether they be against the Company, the Committee, or the Trustee, any of whom may require the Participant or
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Beneficiary (or legal representative), as a condition precedent to such payment to execute a release and receipt therefor.
10.8
No Liability
.
Participation in the Plan is entirely at the risk of each Participant. Neither the Company, any Affiliated Company, the Committee, the Trustee nor any
other person associated with the Plan shall have any liability for any loss or diminution in the value of Accounts, or for any failure of the Plan to effectively defer recognition of income or to achieve any Participant’s desired tax treatment
or financial results.
10.9
Tax Withholding
.
All payments under the Plan shall be subject to federal, state and local income tax withholding and other legally required deductions.
10.10
Facility of Payment
.
If the Committee determines that a Participant or Beneficiary entitled to receive a payment under this Plan is (at the time such payment is to be made) a minor or physically, mentally or legally
incompetent to receive such payment and that another person or an institution has legal custody of such minor or incompetent individual, the Committee may cause payment to be made to such person or institution having custody of such Participant or
Beneficiary. Such payment, to the extent made, shall operate as a complete discharge of obligation by the Committee, the Company, the Trustee and the Trust.
10.11
Repayment of Awards
.
If any amount credited to a Deferral Account represents a
portion of an Award that is subsequently found to be repayable by the Participant to the Company or any Affiliated Company pursuant to the plan pursuant to which the Award was made, the amount of that credit shall nevertheless remain unaffected by
that repayment obligation, and the Participant shall make the required repayment out of his/her own funds.
10.12
Stock
Subject to the Plan
.
Subject to adjustment as provided below, the total number of shares of Stock reserved and available for issuance in
connection with the Plan is 3,320,490. Any Stock issued hereunder may consist, in whole or in part, of authorized and unissued shares or treasury shares. If there is a merger, reorganization, consolidation, recapitalization, share dividend, share
split, reverse split, combination of shares or other change in corporate structure of the Company affecting the Stock, such substitution or adjustment shall be made in the aggregate number of shares of Stock reserved for issuance under the Plan, and
in the number of shares deemed to be held in any Account, as may be approved by the Committee in its sole discretion.
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IN WITNESS WHEREOF,
the Company has caused this instrument to be executed by its duly authorized
officers as of this day of , 2007.
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THE PROGRESSIVE CORPORATION
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By:
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Title:
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Exhibit 4.9
FIRST AMENDMENT TO THE PROGRESSIVE CORPORATION
EXECUTIVE DEFERRED
COMPENSATION PLAN
(2008 Amendment and Restatement)
WHEREAS
, The Progressive Corporation Executive Deferred Compensation Plan is currently maintained pursuant to a 2008 Amendment and
Restatement (“Plan”); and
WHEREAS
, it is deemed desirable to amend the Plan further;
NOW, THEREFORE
, the Plan is hereby amended in the respects hereinafter set forth:
1. Effective as of January 1, 2008, but only with respect to Awards that were earned or become vested on or after January 1,
2005, the last sentence of the first paragraph of Section 3.1 of the Plan is hereby amended and restated in its entirety to provide as follows:
“If distribution is to be made in installments, payment of installments following the first installment shall be made within thirty (30) days following each anniversary of (1) the date
referred to in clause (i) or (ii) of the first sentence of this Section 3.1 or (2) the date of a Participant’s Termination of Employment, as applicable, until all installments have been paid.”
2. Except as expressly provided in this Amendment, the terms and provisions of the Plan shall remain entirely unchanged and continue in
full force and effect.
IN WITNESS WHEREOF
, the undersigned has hereunto caused this Amendment to be executed by its
duly authorized representative on this 19 day of May, 2008.
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THE PROGRESSIVE CORPORATION
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By:
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/s/ Charles E. Jarrett
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Title:
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Chief Legal Officer
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Exhibit 4.10
THE PROGRESSIVE CORPORATION EXECUTIVE
DEFERRED COMPENSATION PLAN
(2010 Amendment and Restatement)
TABLE OF CONTENTS
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PAGE NO.
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ARTICLE 1 — DEFINITIONS
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1
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1.1
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‘Affiliated Company’
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1
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1.2
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‘Annual Deferral Account or Account’
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1
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1.3
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‘Award’
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1
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1.4
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‘Beneficiary’
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2
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1.5
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‘Change in Control’
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2
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1.6
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‘Code’
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2
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1.7
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‘Committee’
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2
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1.8
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‘Company’
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2
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1.9
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‘Company Stock Fund’
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2
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1.10
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‘Deduction Limitation’
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2
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1.11
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‘Deferral Agreement’
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3
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1.12
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‘Deferral’
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3
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1.13
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‘Disabled and Disability’
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3
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1.14
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‘Distribution Event’
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3
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1.15
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‘Eligible Executive’
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3
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1.16
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‘ERISA’
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3
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1.17
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‘Fixed Deferral Period’
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3
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1.18
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‘Gainsharing Award’
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3
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1.19
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‘Incentive Plan’
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3
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1.20
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‘Investment Fund’
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3
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1.21
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‘Participant’
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4
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1.22
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‘Performance-Based Stock Award’
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4
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1.23
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‘Plan’
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4
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1.24
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‘Plan Year’
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4
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1.25
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‘Restricted Stock’
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4
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1.26
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‘Restricted Stock Unit’
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4
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1.27
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‘Separation from Service’
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4
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1.28
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‘Stock’
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4
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1.29
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‘Stock Awards’
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4
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1.30
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‘Termination of Employment’
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4
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1.31
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‘Time-Based Stock Award’
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4
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1.32
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‘Trust’
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4
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1.33
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‘Trust Agreement’
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4
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1.34
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‘Trustee’
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5
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1.35
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‘Unforeseeable Emergency’
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5
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1.36
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‘Valuation Date’
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5
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ARTICLE 2 — DEFERRAL OF GAINSHARING AWARDS
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5
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2.1
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Method of Deferral
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5
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2.2
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Deferral Agreement Provisions
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5
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2.3
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Fixed Deferral Periods
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6
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ARTICLE 3 — DISTRIBUTIONS AND WITHDRAWALS
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7
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3.1
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Date of Distribution
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7
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3.2
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Method of Distribution
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8
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3.3
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Amount of Distribution
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8
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i
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3.4
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Form of Distribution
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9
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3.5
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Involuntary Cashouts
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9
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3.6
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Special Distributions
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9
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ARTICLE 4 — ACCOUNTS
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10
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4.1
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Establishment of Annual Deferral Accounts
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10
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4.2
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Investment of Accounts
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10
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4.3
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Valuation of Investment Funds
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11
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4.4
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Valuation of Accounts
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11
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4.5
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Nature of Accounts
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11
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4.6
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Account Statements
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11
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ARTICLE 5 — INVESTMENT FUNDS
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12
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5.1
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Investment Funds
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12
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5.2
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Investment Elections of Participants
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12
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5.3
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Transfers
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12
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5.4
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Special Rule for Stock Awards
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12
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5.5
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Nature of Investment Funds
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13
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5.6
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Liquidation of Investment Funds
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13
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ARTICLE 6 — TRUST
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13
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6.1
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Establishment of Trust
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13
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ARTICLE 7 — PLAN OPERATION AND ADMINISTRATION
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14
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7.1
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Powers of Committee
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14
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7.2
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Reliance on Tables, etc.
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14
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7.3
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Indemnification
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15
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7.4
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Notices to Committee
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15
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ARTICLE 8 — CLAIMS PROCEDURES
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15
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8.1
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Establishment of Claims Procedure
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15
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8.2
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Claims Denials
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15
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8.3
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Appeals of Denied Claims
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16
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8.4
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Review of Appeals
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16
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8.5
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Extensions
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17
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8.6
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Claims Denials
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17
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ARTICLE 9 — AMENDMENT AND TERMINATION OF THE PLAN
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17
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9.1
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Amendment
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17
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9.2
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Termination
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17
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9.3
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Liquidation of the Trust
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18
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ARTICLE 10 — MISCELLANEOUS PROVISIONS
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18
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10.1
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Headings
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18
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10.2
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Plan Not Contract of Employment
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18
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10.3
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Severability
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19
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10.4
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Prohibition on Assignment
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19
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10.5
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Number and Gender
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19
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10.6
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Governing Law
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19
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10.7
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Satisfaction of Claims
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19
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10.8
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No Liability
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19
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10.9
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Tax Withholding
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19
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10.10
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Facility of Payment
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20
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10.11
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Repayment of Gainsharing Awards
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20
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10.12
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Stock Subject to the Plan
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20
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ii
THE PROGRESSIVE CORPORATION EXECUTIVE
DEFERRED COMPENSATION PLAN
(2010 Amendment and Restatement)
WHEREAS
, The Progressive Corporation
(“Company”) maintains The Progressive Corporation Executive Deferred Compensation Plan pursuant to a 2008 Amendment and Restatement and one amendment thereto; and
WHEREAS
, it is desired to amend and restate the Plan;
NOW, THEREFORE
, effective
January 1, 2010, the Plan is hereby amended and restated in its entirety to provide as follows:
GRANDFATHERED
PROVISIONS
GOVERNING CERTAIN PRIOR DEFERRALS
The Plan, as in effect on December 31, 2007, shall remain unchanged and continue in full force and effect, but only with respect to Awards that were earned and became vested on or before
December 31, 2004. For the period January 1, 2005 through December 31, 2007, the Plan was operated in compliance with Section 409A of the Code, pursuant to a reasonable interpretation of that section, as it was then in effect,
with respect to Awards that were earned or become vested on or after January 1, 2005.
AMENDED AND RESTATED PROVISIONS
Effective January 1, 2010, the Plan is hereby amended and restated in its entirety to provide as follows:
ARTICLE 1
DEFINITIONS
1.1 “
Affiliated Company
” means any corporation included in the affiliated group of corporations as defined in Section 1504 of the Code (determined without regard to 1504(b)) of which
the Company is the common parent corporation.
1.2 “
Account
” or “
Deferral Account
” shall
have the meaning set forth in Section 4.1.
1.3 “
Award”
means a Gainsharing Award or Stock Award.
1
1.4 “
Beneficiary
” means such person(s) as the Participant has designated. A
Participant may change his/her Beneficiary designation at any time. All Beneficiary designations (including changes) shall be made in writing on such forms as the Committee shall prescribe, and shall become effective only when received and accepted
by the Committee; provided, however, that a Beneficiary designation (including a change) received by the Committee after the designating Participant’s death shall be disregarded. In the absence of a Beneficiary designation, or if the designated
Beneficiary is no longer living or in existence at the time of the Participant’s death, all distributions payable from the Plan upon the Participant’s death shall be paid to the Participant’s estate.
1.5 “
Change in Control
” means a change in the ownership of the Company, a change in effective control of the Company, or
a change in the ownership of a substantial portion of the Company’s assets, each as determined in accordance with Section 409A of the Code.
1.6 “
Code
” means the Internal Revenue Code of 1986, as amended, and the regulations promulgated pursuant thereto.
1.7 “
Committee
” means the Compensation Committee of the Board of Directors of the Company, or any successor committee.
1.8 “
Company
” means The Progressive Corporation, an Ohio corporation, or its successors.
1.9 “
Company Stock Fund
” means an Investment Fund consisting of Stock and cash, and administered in accordance with such
rules regarding reinvestment of dividends and treatment of fractional shares as the Committee shall prescribe.
1.10
“
Deduction Limitation
” means the following described limitation on a payment that may otherwise be distributable under the Plan. If the Committee determines in good faith that there is a reasonable anticipation that any compensation
to a Participant for a taxable year of the Company would not be deductible by the Company solely by reason of the limitation under Code Section 162(m), the Committee may elect to defer all or any portion of a distribution otherwise payable to
the Participant under this Plan to the extent necessary to preserve the Company’s deduction under Code Section 162(m) for such taxable year; provided, however, that if the Committee elects to defer a portion of a distribution in respect of
a Participant pursuant to this Section 1.10, then the Committee shall also defer all remaining portions of such distribution to the extent permissible under this Section 1.10. Any amounts deferred pursuant to this limitation shall continue
to be deemed to be invested as provided in Article 5. The amounts so deferred (subject to investment gains and losses) shall be distributed to the Participant or his or her Beneficiary (if the Participant dies) no later than the last day of the Plan
Year in which the Committee determines in good faith that the deductibility of compensation paid or payable to the Participant for the taxable year of the Company during which the distribution is made will not be limited by Code Section 162(m),
or the last day of the Plan Year in which the Participant experiences a Separation from Service (or, if later, no later than six months and one day following the date of such Separation from Service).
2
1.11 “
Deferral Agreement
” means an agreement entered into by an Eligible
Executive pursuant to Article 2.
1.12 “
Deferral
” means an amount credited to a Deferral Account pursuant to
a Deferral Agreement.
1.13 “
Disabled” and “Disability
” means that a Participant is, by reason of
any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving short-term and/or long-term disability benefits
for a period of not less than three (3) months under The Progressive Health, Life and Disability Benefits Plan, or any similar successor plan.
1.14 “
Distribution Event
” means, as to each Participant, the earliest of the following events:
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(i)
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the Participant’s death;
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(ii)
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the Participant’s Termination of Employment; or
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1.15
“
Eligible Executive
” means any executive of the Company or any Affiliated Company who has a target Gainsharing Award of 35% or more of salary or who is designated in writing as an Eligible Executive by the Committee, excluding,
however, individuals who are not residents of the United States or are not working at a location in the United States.
1.16
“
ERISA
” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated pursuant thereto.
1.17 “
Fixed Deferral Period
” shall have the meaning set forth in Section 2.3.
1.18 “
Gainsharing Award
” means any bonus or other incentive award payable with respect to a Plan Year under any plan that expressly allows deferrals under this Plan, including The
Progressive Corporation Gainsharing Plan, The Progressive Capital Management Bonus Plan, The Progressive Corporation Executive Bonus Plan and any other plan or program as may be designated by the Committee.
1.19 “
Incentive Plan
” means The Progressive Corporation 2003 Incentive Plan, as amended from time to time or any similar
plan that may be adopted by the Company in the future and that provides for the issuance of restricted stock and/or restricted stock units.
1.20 “
Investment Fund
” means a device established from time to time by the Committee pursuant to Section 5.1 that is used to calculate gains and losses in amounts deferred by
Participants under the Plan.
3
1.21 “
Participant
” means an Eligible Executive who has deferred receipt of
a portion of any Award pursuant to a Deferral Agreement. Participation shall begin on the date that a Deferral Account is established in the name of the Participant and shall end on the date that the Participant dies or receives a distribution of
the balance of all his/her Deferral Accounts.
1.22 “
Performance-Based Stock Award
” means an Award of
“Performance-Based Restricted Stock” or “Performance-Based Restricted Stock Units,” (or their equivalents) as defined in an Incentive Plan.
1.23 “
Plan
” means The Progressive Corporation Executive Deferred Compensation Plan (2010 Amendment and Restatement), as set forth herein and as it may be amended from time to time.
1.24 “
Plan Year
” means 2010 and each subsequent calendar year.
1.25 “
Restricted Stock
” means an award of shares of Stock that is made pursuant to an Incentive Plan and is subject to
restrictions.
1.26
“Restricted Stock Unit
” “ means an award, the value of which is determined by
reference to a quantity of Stock, that is granted under an Incentive Plan and is subject to restrictions.
1.27
“Separation from Service
” shall have the meaning set forth in Section 409A of the Code.
1.28
“
Stock
” means the Common Shares, $1.00 par value, of the Company.
1.29 “
Stock Awards
” means
an award of Restricted Stock or Restricted Stock Units.
1.30 “
Termination of Employment
” means the voluntary
or involuntary cessation of a Participant’s employment with the Company and all Affiliated Companies as a result of a Separation from Service for any reason other than death, Disability or a military leave, sick leave or other leave of absence
that is reasonably expected to last for a period of less than six months, or any leave of absence for which the Participant retains a right to reemployment either by statute or by contract with the Company.
1.31 “
Time-Based Stock Award
” means an Award of “Time-Based Restricted Stock” or “Time-Based Restricted
Stock Units,” (or their equivalents) as defined in an Incentive Plan.
1.32 “
Trust
” shall mean the trust
maintained pursuant to the Trust Agreement and known as The Progressive Corporation Executive Deferred Compensation Trust.
1.33 “
Trust Agreement
” shall mean the agreement of trust between the Company and the Trustee executed in furtherance of
the Plan, as the same may be amended from time to time.
4
1.34 “
Trustee
” shall mean the person selected from time to time by the
Company to serve as trustee under the Trust Agreement.
1.35 “
Unforeseeable Emergency
” shall have the meaning
set forth in Section 409A of the Code.
1.36 “
Valuation Date
” shall mean each day that the New York
Stock Exchange is open for trading.
ARTICLE 2
DEFERRAL OF AWARDS
2.1
Method of Deferral
.
Each Eligible Executive may elect to defer receipt of all or a portion of his/her Gainsharing Award and/or the entirety of any of his/her Stock Awards in
respect of any Plan Year by signing a Deferral Agreement and delivering it to the Committee or by completing a Deferral Agreement and transmitting it to the Committee via the Company’s electronic mail system. If a Gainsharing Award is payable
in installments, each installment, whether or not payable in the same Plan Year, shall be subject to the same Deferral Agreement. Any taxes or other amounts due with respect to any deferred Gainsharing Award or Stock Award shall be paid by the
Eligible Executive to the Company no later than the date specified by the Company.
2.2
Deferral Agreement Provisions
.
Each Deferral Agreement must satisfy all of the following requirements:
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(a)
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it must be in the form specified by the Committee;
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(b)
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it must be delivered in writing, or transmitted electronically, to the Committee in accordance with such procedures as the Committee may establish from time to time.
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(c)
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it must be irrevocable;
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(d)
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as to deferrals of Gainsharing Awards, it must apply to only one such Gainsharing Award;
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(e)
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as to deferrals of Stock Awards, it must apply to all Time-Based Stock Awards granted during the Plan Year, all Performance-Based Stock Awards granted during the Plan
Year, or both;
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(f)
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it must be delivered to the Committee in writing, or received by the Committee via the Company’s electronic mail system, (i) as to each Gainsharing Award,
prior to the Plan Year in which the Gainsharing Award will be earned, and (ii)
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5
as to each Restricted Stock Award, prior to the Plan Year the Stock Award is granted;
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(g)
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as to deferrals of Gainsharing Awards, it must specify the percentage of the Eligible Executive’s Gainsharing Award to be deferred, which percentage shall not be
less than ten percent (10%). The same deferral percentage shall apply to each installment of a Gainsharing Award covered by the Deferral Agreement. However, a Deferral Agreement may provide for the deferral of a percentage of that portion of a
Gainsharing Award that exceeds a specified gross dollar amount, which percentage shall not be less than ten percent (10%). Notwithstanding the preceding provisions of this Section 2.2(g), no Deferral shall be less than such dollar amount as the
Committee may specify from time to time;
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(h)
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as to deferral of a Stock Award, it must apply to the entirety of each Time-Based Stock Award granted during the Plan Year, the entirety of each Performance-Based Stock
Award granted during the Plan Year, or both;
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(i)
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it must specify whether the balance of the Deferral Account to be established pursuant to that Deferral Agreement will be distributed in a lump sum, in three
(3) annual installments, in five (5) annual installments, or in ten (10) annual installments;
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(j)
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it must specify the Fixed Deferral Period, if any, elected by the Eligible Executive pursuant to Section 2.3 of this Plan; and
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(k)
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it must contain such other provisions, conditions and limitations as may be required by the Company or the Committee.
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2.3
Fixed Deferral Periods
.
If an Eligible Executive wishes to defer receipt of all or a portion of any Award for a fixed period of time (“Fixed Deferral Period”), then his/her Deferral Agreement relating to such Award
shall specify that Fixed Deferral Period. Such Fixed Deferral Period shall not be less than three (3) years following (i) in the case of a deferral of all or a portion of a Gainsharing Award, the end of the Plan Year in which the
Gainsharing Award will be earned and (ii) in the case of a deferral of a Stock Award, the end of the Plan Year in which the last of the restrictions applicable to the Stock Award expires. In the case of a Stock Award as to which restrictions
expire in installments, the Fixed Deferral Period must end on the same date for all installments. Notwithstanding the preceding provisions of this Section 2.3, Eligible Executives may not elect a Fixed Deferral Period with respect to the
deferral of any Performance-Based Stock Award.
6
ARTICLE 3
DISTRIBUTIONS AND WITHDRAWALS
3.1
Date of Distribution
.
Distribution of the balance of each Deferral Account of a Participant shall be made or shall commence within thirty (30) days following
the earlier of (i) the date the Committee receives notice that a Distribution Event has occurred, or (ii) the date on which the Fixed Deferral Period, if any, applicable to such Account expires. Notwithstanding the preceding provisions,
each distribution made on account of a Participant’s Termination of Employment shall not be made or commence until six (6) months after the date of such Termination of Employment. If Distribution is to be made in installments, payment of
installments following the first installment shall be made within thirty (30) days following each anniversary of (1) the date referred to in clause (i) or (ii) of the first sentence of this Section 3.1 or (2) the date
of a Participant’s Termination of Employment, as applicable, until all installments have been paid.
The Committee, in its sole
discretion, may also permit distribution of the entire balance of all of a Participant’s Deferral Accounts to be made within thirty (30) days following the date the Participant is determined by the Committee to be Disabled. If the
Committee approves such a Disability distribution, no further Deferrals shall be made with respect to the Disabled Participant following the date of the Committee’s approval, and each Deferral Agreement to which such Participant is then a party
shall be of no further effect.
The Committee in its sole discretion may also permit distribution of all or a portion of the balance of a
Participant’s Deferral Accounts to be made following the Committee’s receipt of written notice that an Unforeseeable Emergency has occurred with respect to such Participant. Such distribution shall be limited to the amount reasonably
necessary to satisfy the need created by such Unforeseeable Emergency, plus any applicable taxes. If the Committee approves such an Unforeseeable Emergency distribution, no further Deferrals shall be made with respect to such Participant following
the date of the Committee’s approval, and each Deferral Agreement to which such Participant is then a party shall be of no further effect. To the extent permitted under Section 409A of the Code, a Participant who receives a distribution
due to an Unforeseeable Emergency may enter into a new Deferral Agreement in any Plan Year following the Plan Year in which the Participant received such distribution.
Notwithstanding the preceding provisions of this Section 3.1, a Participant may elect to change the date any distribution on account of expiration of a Fixed Deferral Period is to be made or
commence. Each such election change must be made in writing and on such forms as the Committee shall specify. Each such election change must be delivered to the Committee at least one (1) year prior to the expiration of the Fixed Deferral
Period and shall delay the payment or commencement of distributions to the Participant for a period of at least five (5) years following the date such distribution otherwise would have been made or would have commenced. In the case of a
distribution to be made in installments, the
7
provisions of this paragraph shall apply to each installment payment as if each such installment payment
were a separate distribution.
Participants desiring to receive a distribution due to Disability or Unforeseeable Emergency, shall submit a
written request to the Committee in such form as it shall specify.
3.2
Method of Distribution
.
Each distribution of all or a portion of the balance of a Deferral Account shall be made to the Participant, except that any such distribution made on
account of the Participant’s death shall be made to the Participant’s Beneficiary. Each distribution made on account of the Participant’s death, Disability, Unforeseeable Emergency or a Change in Control shall be paid in a lump sum.
Each distribution made on account of the Participant’s Termination of Employment or expiration of a Fixed Deferral Period shall be paid in either a lump sum or installments, as specified in the applicable Deferral Agreement.
If a Participant elects to receive payment in installments and dies prior to payment of all installments, the balance remaining unpaid at his/her death
shall be paid to his/her Beneficiary in a lump sum.
Installment payments shall be paid in three (3) annual installments, in five
(5) annual installments or in ten (10) annual installments, as specified in the applicable Deferral Agreement.
Notwithstanding the
preceding provisions of this Section 3.2, a Participant may elect to change the method of distribution elected in respect of any distribution to be made on account of Termination of Employment or expiration of a Fixed Deferral Period to any of
the four permissible distribution options set forth in Section 2.2(i). Such election change shall not take effect until the first anniversary of the date it is delivered to the Committee. Each such election change must be made in writing and on
such forms as the Committee shall specify. Any election change with respect to a Fixed Deferral Period must be delivered to the Committee at least one (1) year prior to the expiration of the Fixed Deferral Period. In addition, any election
change with respect to a Termination of Employment or Fixed Deferral Period shall delay the payment or commencement of distributions to a Participant for a period of at least five (5) years following the date such distribution otherwise would
have been made or would have commenced.
3.3
Amount of Distribution
.
The amount of each lump sum payment shall be equal to the balance of the Deferral Account, as of the Valuation Date immediately preceding the date of any
distribution from the Plan. In the case of a lump sum payment made upon the occurrence of an Unforeseeable Emergency, the amount shall be such portion of such balance as the Committee, in its sole discretion, shall determine, as being reasonable
necessary to meet the need created by such Unforeseeable Emergency, plus any applicable taxes. The amount of each installment payment shall be equal to the balance of the Deferral Account as of the Valuation Date immediately preceding the date of
payment multiplied by a fraction, the numerator of which is one and the denominator of which is the number of
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years remaining in the period over which installments are to be paid. Installment distributions to be made
in Stock shall be rounded to the nearest whole share. Notwithstanding anything in the Plan to the contrary, all distributions, except those made on account of a Change in Control, are subject to the Deduction Limitation.
3.4
Form of Distribution
.
Distributions of Deferrals of Stock Awards granted in 2005 and later years shall be made in Stock, with any fractional shares of Stock and any portion of such distribution that is derived from cash
dividends on deferred Restricted Stock Awards to be made in cash. All other Plan distributions shall be made in cash.
3.5
Involuntary Cashouts
.
If, at any time during a Plan Year, the aggregate balance of a Participant’s Deferral Accounts under the
Plan is less than the applicable dollar amount under Section 402(g)(1)(B) of the Code for that Plan Year, the Committee, in its sole discretion, may distribute such aggregate balance to such Participant in a lump sum.
3.6
Special Distributions
.
Notwithstanding anything in this Plan to the contrary,
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(i)
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The Committee, in its sole discretion, may make payment of all or a portion of one or more Participant’s Deferral
Accounts at any time that the Plan fails to meet the requirements of Section 409A of the Code. Such payment may not exceed the amount required to be included in income of such Participant(s) as a result of such failure; and
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(ii)
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The Committee, in its sole discretion, may distribute all or any portion of the Deferral Accounts of one or more
Participants to reflect payment of state, local or foreign tax obligations or obligations imposed by the Federal Insurance Contributions Act (FICA), including the additional tax at source on wages, arising from participation in the Plan that apply
to an amount deferred under the Plan before the amount is paid or made available to the Participant. Such payment to a Participant may not exceed the amount of such taxes due as a result of such Participant’s participation in the Plan. Such
payment may be made to the Participant in the form of withholding pursuant to provisions of applicable state, local or foreign law, or by distribution directly to the Participant.
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ARTICLE 4
ACCOUNTS
4.1
Establishment of Deferral Accounts
.
The Committee shall establish a Deferral Account in the name of each Participant for each Gainsharing Award, or portion thereof, and each Stock Award
that is the subject of a Deferral Agreement. As to Deferrals of Gainsharing Awards, each such Account shall be established as of the first date that such Gainsharing Award, or portion thereof, otherwise would have been paid to the Participant. As to
deferrals of Stock Awards, each such Account shall be established as of the date that the restrictions applicable to such Stock Award expire. In the case of a Stock Award as to which the restrictions expire at different times for different portions
of the Award, such Account shall be established as of the date the first of such restrictions expires. Each Deferral Account shall be credited with the deferred portion of such Award at the time the Account is established, or, in the case of a Stock
Award as to which the restrictions expire at different times for different portions of the Award, from time-to-time as such restrictions expire. Thereafter, all Deferral Accounts shall be valued and administered as provided in this Article.
Notwithstanding anything in the Plan to the contrary, the Trustee may combine two (2) or more of any Participant’s Deferral Accounts into a single Account, if the Deferral Accounts to be combined (i) are subject to Fixed Deferral
Periods ending on the same date or (ii) are not subject to Fixed Deferral Periods at all.
4.2
Investment of
Accounts
.
All credits to a Deferral Account of a Participant shall be deemed to be invested in such Investment Fund or Funds as the
Participant shall elect from time to time in accordance with Article 5. The number of shares of Stock to be credited to a Participant’s Account by virtue of a Participant’s initial election to invest a portion of a Deferral in the Company
Stock Fund shall be determined on the date of the Deferral in accordance with such procedures as the Committee shall establish, based on the weighted average price paid for all shares of Stock purchased by the Trustee and deposited in the Trust on
that date pursuant to Article 6. If a Participant has any portion of a Deferral in the Company Stock Fund on the record date for a dividend to be paid on the Company’s Stock, an amount determined at a per share rate equivalent to such dividend
shall be credited to the Participant’s Account as of the payment date for such dividend, and such amount shall be deemed to be reinvested in the Company Stock Fund. Notwithstanding the preceding provisions of this Section 4.2, (i) all
credits to a Deferral Account of a Participant relating to a deferred Stock Award granted prior to March 17, 2005 (and dividends thereon), shall be deemed to be invested in the Company Stock Fund until six (6) months and one (1) day
following the expiration of the restrictions applicable to such Award, unless otherwise determined by the Committee at or after the deferral of such Award, and, thereafter, the preceding provisions of this Section 4.2 shall apply, and
(ii) all credits to a Deferral Account of a Participant relating to a deferred Stock Award granted on or after March 17, 2005 (including dividends thereon), shall be deemed to be invested in the Company Stock Fund until the balance of such
Deferral Account has been distributed in accordance with Article 3.
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4.3
Valuation of Investment Funds
.
As of each Valuation Date, the Trustee shall compute the value of each Investment Fund from which shall be determined the net gain or loss of such
Investment Fund since the immediately preceding Valuation Date. The net gain or loss shall include any unrealized and realized profits and losses, and any dividends, interest or other income and any expenses which are due or accrued, but shall not
include distributions from such Investment Fund. In determining the value of each Investment Fund, the Trustee shall use the following values: securities listed on any nationally recognized securities exchange shall be valued at the closing price
reported on any such exchange on the Valuation Date, or, if there were no sales on the Valuation Date, then at the last quoted bid price on the Valuation Date. Securities not listed on a recognized securities exchange shall be valued at the last
quoted closing bid price on the Valuation Date. A unit of participation in a common trust fund maintained by the Trustee or a share in a mutual fund shall be valued at the unit value, or share price respectively, in effect at the close of business
on the Valuation Date. Securities with respect to which there were no available sale prices or bid prices on the Valuation Date, and any other investments, shall be valued at prices deemed by the Trustee to represent the fair market value thereof on
the Valuation Date.
4.4
Valuation of Accounts
.
As of each Valuation Date, the net gain or loss of each Investment Fund shall be allocated among the appropriate Deferral Accounts in accordance with such procedures as the Committee shall establish,
which procedures shall apply uniformly to all Participants.
4.5
Nature of Accounts
.
All credits to each Deferral Account of each Participant shall be recorded as a liability on the books of the Company. However, no Participant or
Beneficiary shall have any proprietary rights of any nature with respect to any Account of any Participant or with respect to any funds, securities or other property owned by the Company or any Affiliated Company that is held in the Trust or that
otherwise may be represented from time to time by Investment Funds. All payments under the Plan shall be made from the Trust or from the Company’s general funds and in no event shall any Participant or Beneficiary have any claims or rights to
any payment hereunder that are superior to any claims or rights of any general creditor of the Company.
4.6
Account
Statements
.
The Committee will furnish each Participant, or make available to each Participant on-line, periodic statements of the value
of each of his/her Deferral Accounts.
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ARTICLE 5
INVESTMENT FUNDS
5.1
Investment Funds
.
The Committee shall establish and maintain the Company Stock Fund and such other Investment Funds as are specified from time to time by the Company. In
this regard, the Company may choose to offer as Investment Funds any investment vehicles, including without limitation: (i) securities issued by investment companies advised by affiliates of the Trustee, (ii) guaranteed investment
contracts recommended by the Trustee, and (iii) collective investment trusts maintained by the Trustee.
5.2
Investment Elections of Participants
.
Each Participant shall make an investment election in the manner prescribed by the Committee,
directing the manner in which his/her Deferrals shall be deemed to be invested. Each investment election must be made at the time the applicable Deferral Agreement is signed and may be changed upon notice to the Committee at any time prior to the
deemed deposit of the applicable Deferral into one or more Investment Funds. Such elections and notices to the Committee must be made in writing or through the Company’s electronic mail system in accordance with such procedures as the Committee
may prescribe. Each Participant may make a separate investment election for each of his/her Deferral Accounts. Each investment election shall specify that Deferrals shall be deemed to be deposited in one or more of the Investment Funds in
percentages that are each an integral multiple of 1% and that in the aggregate equal 100% of the Deferral.
5.3
Transfers
.
Amounts deemed to be invested in an Investment Fund pursuant to this Section may be transferred to another Investment Fund
in accordance with such procedures and limitations as the Committee shall prescribe. The procedures and limitations prescribed by the Committee may include, without limitation, provisions which (i) limit transfers to specified dollar amounts or
percentages (ii) limit the number of transfers that each Participant may make each Plan year (iii) limit the dates as of which transfers may become effective and (iv) impose waiting periods or other restrictions in connection with
multiple transfers in and out of the same Investment Fund. All such procedures and limitations shall apply uniformly to similarly situated Participants.
5.4
Special Rule for Stock Awards
.
Notwithstanding the preceding provisions of this
Article 5, each Deferral of a Stock Award shall be deemed to be invested in the Company Stock Fund until six (6) months and one (1) day following the date the restrictions applicable to such Stock Award expire, unless otherwise determined
by the Committee at or after the deferral of such Award. Thereafter, the Participant may transfer all or a portion of such Deferral to another Investment Fund in
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accordance with the preceding provisions of this Article 5. Notwithstanding the preceding provisions of this
Section 5.4, each Deferral of a Stock Award granted on or after March 17, 2005 shall be deemed to be invested in the Company Stock Fund until the Deferral Account to which such Deferral has been credited has been distributed in accordance
with Article 3 of this Plan.
5.5
Nature of Investment Funds
.
Notwithstanding anything in the Plan, Trust or any Deferral Agreement to the contrary, no Participant shall have any rights or interests in any particular funds, securities or property of the Company, any
Affiliated Company or the Trust, or in any investment vehicle in which Deferrals are deemed to be invested, by virtue of any investment election made by the Participant under the Plan, any deemed investment under the Plan or any transactions engaged
in by the Trust. Each Deferral Account, however, shall be credited/charged in accordance with Article 4 with gains/losses as if the Participant in fact had made a corresponding actual investment.
5.6
Liquidation of Investment Funds
.
If any Investment Fund is liquidated or otherwise ceases to exist without a successor, then that portion of each Account balance that previously has been deemed to have been invested in that Investment
Fund shall be deemed to have been transferred to an Investment Fund consisting of money market instruments, or, if none, such other Investment Fund selected by the Committee.
ARTICLE 6
TRUST
6.1
Establishment of Trust
.
The Company shall establish and maintain a Trust to provide a source of funds to assist the Company in meeting its liabilities under the Plan. Within thirty (30) days following the end of each Plan
Year ending after the Trust has become irrevocable pursuant to the Trust Agreement, the Company shall be required to irrevocably deposit additional cash or other property to the Trust in an amount sufficient to pay each Participant or Beneficiary
the benefits payable pursuant to the terms of the Plan as of the close of that Plan year.
The principal of the Trust, and any earnings
thereon, shall be held separate and apart from other funds of Company and shall be used exclusively for the uses and purposes of Plan Participants and general creditors of the Company as set forth herein and in the Trust Agreement. Plan Participants
and their Beneficiaries shall have no preferred claim on, or any beneficial ownership interest in, any assets of the Trust. Any rights created under the Plan and the Trust Agreement shall be mere unsecured contractual rights of Plan Participants and
their Beneficiaries against Company. Any assets held by the Trust will be subject to the claims of the Company’s general creditors under federal and state law in the
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event of Insolvency, as defined in the Trust Agreement. All assets deposited in the Trust shall be held,
administered and distributed by the Trustee in accordance with the Trust Agreement. The Company shall pay directly, or reimburse the Trustee for, all taxes due in respect of any income or gains on Trust assets.
ARTICLE 7
PLAN OPERATION AND ADMINISTRATION
7.1
Powers of Committee
.
The Committee will have full power to administer the Plan. Such
power includes, but is not limited to, the following authority:
(a) to make and enforce such rules and regulations as it deems
necessary or proper for the efficient administration of the Plan;
(b) to interpret the Plan and to decide all matters arising
thereunder, including the right to resolve or remedy any ambiguities, errors, inconsistencies or omissions. All such interpretations shall be final and binding on all parties;
(c) to compute the amounts payable to any Participant or Beneficiary or other person in accordance with the provisions of the Plan;
(d) to authorize disbursements from the Trust or the Plan;
(e) to keep such
records and submit such filings, elections, applications, returns or other documents or forms as may be required under ERISA, the Code or other applicable law;
(f) to appoint such agents, counsel, accountants and consultants as may be desirable to assist in administering the Plan;
(g) To exercise the other powers that are expressly granted to it herein, or that are impliedly necessary for it to carry out any of its responsibilities hereunder; and
(h) by written instrument, to delegate any of the foregoing powers.
7.2
Reliance on Tables, etc
.
The Committee will be entitled, to the extent permitted by law, to rely conclusively on all tables, valuations, certificates, opinions and reports which are furnished by any accountant, Trustee, counsel
or other expert retained by the Committee to assist it in administering the Plan.
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7.3
Indemnification
.
In addition to whatever rights of indemnification to which employees, officers and directors of the Company and the Affiliated Companies may be entitled under the articles of incorporation, regulations or
bylaws of the Company or the Affiliated Companies, under any provision of law, or under any other agreement, the Company shall satisfy any liabilities actually and reasonably incurred by any such employee, officer or director, including expenses,
attorneys’ fees, judgments, fines and amounts paid in settlement, in connection with any threatened, pending, or completed action, suit, or proceeding which is related to the exercise or failure to exercise by such person or persons of any of
the powers, authority, responsibilities, or discretion of the Company, the Affiliated Companies or the Committee provided under the Plan or the Trust Agreement, or reasonably believed by such person or persons to be provided thereunder, and any
action taken by such person or persons in connection therewith.
7.4
Notices to Committee
.
The Committee shall designate one or more addresses to which notices and other communications to the Committee shall be sent. No notice or other
communication shall be considered to have been given to or received by the Committee until it has been delivered to the Committee’s attention at one of such designated addresses.
ARTICLE 8
CLAIMS PROCEDURES
8.1
Establishment of Claims Procedure
The Committee shall establish reasonable procedures
under which a claimant, who may be a Participant, or Beneficiary, or his/her duly authorized representative, may present a claim for benefits under this Plan.
Unless such claim is
allowed in full by the Committee, written notice of the denial shall be furnished to the claimant within ninety (90) days (which may be extended by a period not to exceed an additional ninety (90) days if special circumstances so require
and written notice to the claimant is given prior to the expiration of the initial ninety (90) day period describing such circumstances and indicating the date by which the Committee expects to render its determination) setting forth the
following in a manner calculated to be understood by the claimant:
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(i)
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The specific reason(s) for the denial;
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(ii)
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Specific reference(s) to any pertinent provision(s) of the Plan or rules promulgated pursuant thereto on which the denial is based;
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(iii)
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A description of any additional information or material as may be necessary to perfect the claim, together with an explanation of why it is necessary;
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(iv)
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A description of the Plan’s claims review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring
a civil action under Section 502(a) of ERISA following an adverse benefit determination on review; and
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(v)
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An explanation of the steps to be taken if the claimant wishes to resubmit his/her claim for review.
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8.3
Appeals of Denied Claims
Within a reasonable period of time after the denial of the claim, but in any event, not to be more than sixty (60) days, the claimant or his/her duly authorized representative may make written
application to the Committee for a review of such denial. The claimant or his/her representative, may, upon request and free of charge, review or receive copies of documents, records and other information relevant to the claimant’s claim for
benefits, and may submit written comments, documents, records and other information relating to the claim for benefits.
8.4
Review of Appeals
If an appeal is timely filed, the Committee shall conduct a full and fair review of the claim and mail or deliver to
the claimant its written decision within sixty (60) days after the claimant’s request for review (which may be extended by a period not to exceed an additional sixty (60) days if special circumstances or a hearing so require and
written notice to the claimant is given prior to the expiration of the initial sixty (60) day period describing such special circumstances and indicating the date by which the Committee expects to render its determination). In conducting its
review, the Committee shall take into account all comments, documents, records and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit
determination. The Committee’s decision on review shall:
(i) Be written in a manner calculated to be
understood by the claimant;
(ii) State the specific reason(s) for the decision;
(iii) Make specific reference to pertinent provision(s) of the Plan;
(iv) State that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of,
all documents, records and other information relevant to the claimant’s claim for benefits; and
(v)
Include a statement of the claimant’s right to bring a civil action under Section 502(a) of ERISA.
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8.5
Extensions
If a period of time is extended, as permitted under Sections 8.2 and 8.4 above, due to a claimant’s failure to submit information to decide a claim, the period for making the benefit determination on
review shall be tolled from the date on which the notification of the extension is sent to the claimant until the date on which the claimant responds to the request for additional information.
8.6
Disability Claims
Claims involving a determination of Disability or payments related to Disability shall comply with and follow the applicable Department of Labor
regulations. Upon the filing of an initial Disability-related claim, the Committee will make a decision regarding a Participant’s claim within 45 days of such Participant’s request, unless special circumstances would make rendering a
decision within the 45-day period unfeasible. The Committee will notify the Participant of its need to extend the decision deadline and may extend the deadline for up to two additional 30-day periods, if necessary. The Participant will be permitted
to appeal any adverse initial determination up to 180 days after the determination is issued. The Committee will make a decision within a reasonable period of time after receiving any appeal but in no event later than 45 days after a
Participant’s appeal is received unless special circumstances would make rendering a decision within the 45-day period unfeasible. The Committee will notify a Participant of any need to extend the decision deadline and may extend the deadline
for no more than an additional 45 days. More details about the Disability retirement procedure are available from the Committee.
ARTICLE 9
AMENDMENT AND TERMINATION OF THE PLAN
9.1
Amendment
.
The Company may amend the Plan and Trust Agreement in any respect at any
time for any reason by action of the Committee without liability to any Participant, Beneficiary or other person for any such amendment or for any other action taken pursuant to this Section 9.1, provided that any amendment required to be
approved by the Company’s shareholders pursuant to Section 162(m) of the Code shall not be effective until approved by the Company’s shareholders in accordance with the requirements of Section 162(m) and further provided that no
such amendment shall be made retroactively in a manner that would deprive any Participant of any rights or benefits which have accrued to his/her benefit under the Plan as of the date such amendment is proposed to be effective, unless such amendment
is necessary to comply with applicable law.
9.2
Termination
.
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The Company may terminate the Plan at any time for any reason by action of the Committee without any
liability to any Participant, Beneficiary or other person for any such termination or for any other action taken pursuant to this Section 9.2. Following termination of the Plan, and notwithstanding the provisions of any Deferral Agreement
entered into prior to such termination, no additional Deferrals may be made hereunder, but all existing Accounts shall continue to be administered in accordance with the Plan, as in effect immediately prior to termination, and shall be distributed
in accordance with such terms of the Plan and the applicable Deferral Agreements, unless and until the Company elects to accelerate distribution as provided below. At any time on or after the effective date of termination of the Plan, the Company,
in its sole discretion, may elect to accelerate the distribution of the entire balance of each Participant’s Accounts to the extent permitted under Section 409A of the Code. Such accelerated distributions shall be made (i) at a time
selected by the Company in accordance with Section 409A of the Code and (ii) in a lump sum based on the value of the Accounts, determined as of the Valuation Date immediately preceding the date of distribution. Upon the completion of
distributions to all Participants or Beneficiaries, as the case may be, no Participant, Beneficiary or person claiming under or through them, will have any claims in respect of the Plan.
9.3
Liquidation of the Trust
.
The Trust shall continue in existence after the termination of the Plan for such period of time as may be required to complete the liquidation thereof in accordance with the terms of this Article 9.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1
Headings
.
The headings of the Plan have been inserted for convenience of reference only and are not to be deemed controlling in any constructions of the provisions
herein (other than with respect to defined terms).
10.2
Plan Not Contract of Employment
.
The existence of the Plan shall not create, evidence or change any contract of employment with any Participant. The right of the Company and all
Affiliated Companies to take corrective, disciplinary or other action with respect to their employees, including terminating their respective employment at any time for any reason, shall not be affected by any provision of this Plan, and the Company
and the Affiliated Companies will not be deemed responsible to provide continuing employment for any reason, at any time solely by reason of this Plan.
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10.3
Severability
.
If any provision of the Plan shall be invalid, such provision shall be fully severable, and the remainder of the Plan and the application thereof shall not be affected thereby.
10.4
Prohibition on Assignment
.
No right or interest under the Plan of any Participant or Beneficiary shall be subject at any time or in any manner to anticipation, alienation, assignment (either at law or in equity), encumbrance (as
security or otherwise), garnishment, levy, execution, or other legal or equitable process, and no Participant or Beneficiary shall have the power at any time or in any manner to anticipate, transfer, assign (either at law or in equity), alienate, or
subject to attachment, garnishment, levy, execution or other legal or equitable process, or in any way encumber, such Participant’s or Beneficiary’s rights or interests under the Plan, and any attempt to do so shall be void; provided,
however, that the Company shall have the unrestricted right to set off against or recover out of any payments due a Participant or Beneficiary at the time such payments would have otherwise been payable hereunder, any amounts owed the Company or any
Affiliated Company by such Participant or Beneficiary.
10.5
Number and Gender
.
Any use of the singular shall be interpreted to include the plural and the plural the singular. Any use of the masculine, feminine or neuter shall be
interpreted to include the masculine, feminine and neuter, as the context shall require.
10.6
Governing Law
.
To the extent not preempted by Federal law, the provisions of the Plan shall be construed, regulated and administered under the laws of the
State of Ohio.
10.7
Satisfaction of Claims
.
Any payment to any Participant or Beneficiary in accordance with the terms of the Plan shall, to the extent thereof, be in full satisfaction of all claims hereunder, whether they be against the Company,
the Committee, or the Trustee, any of whom may require the Participant or Beneficiary (or legal representative), as a condition precedent to such payment to execute a release and receipt therefor.
10.8
No Liability
.
Participation in the Plan is entirely at the risk of each Participant. Neither the Company, any Affiliated Company, the Committee, the Trustee nor any
other person associated with the Plan shall have any liability for any loss or diminution in the value of Accounts, or for any failure of the Plan to effectively defer recognition of income or to achieve any Participant’s desired tax treatment
or financial results.
10.9
Tax Withholding
.
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All payments under the Plan shall be subject to federal, state and local income tax withholding and other
legally required deductions.
10.10
Facility of Payment
.
If the Committee determines that a Participant or Beneficiary entitled to receive a payment under this Plan is (at the time such payment is to be made) a minor or physically, mentally or legally
incompetent to receive such payment and that another person or an institution has legal custody of such minor or incompetent individual, the Committee may cause payment to be made to such person or institution having custody of such Participant or
Beneficiary. Such payment, to the extent made, shall operate as a complete discharge of obligation by the Committee, the Company, the Trustee and the Trust.
10.11
Repayment of Awards
.
If any amount credited to a Deferral Account represents a
portion of an Award that is subsequently found to be repayable by the Participant to the Company or any Affiliated Company pursuant to the plan pursuant to which the Award was made, the amount of that credit shall nevertheless remain unaffected by
that repayment obligation, and the Participant shall make the required repayment out of his/her own funds.
10.12
Stock
Subject to the Plan
.
Subject to adjustment as provided below, the total number of shares of Stock reserved and available for issuance in
connection with the Plan is Three Million Three Hundred Sixteen Thousand Three Hundred Eighty-Two (3,316,382). Any Stock issued hereunder may consist, in whole or in part, of authorized and unissued shares or treasury shares. If there is a merger,
reorganization, consolidation, recapitalization, share dividend, share split, reverse split, combination of shares or other change in corporate structure of the Company affecting the Stock, such substitution or adjustment shall be made in the
aggregate number of shares of Stock reserved for issuance under the Plan, and in the number of shares deemed to be held in any Account, as may be approved by the Committee in its sole discretion.
IN WITNESS WHEREOF,
the Company has caused this instrument to be executed by its duly authorized officers as of this 29th day of December, 2009.
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THE PROGRESSIVE CORPORATION
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By:
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Charles E. Jarrett
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Title:
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Vice President, Secretary, and Chief Legal Officer
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Exhibit 4.11
FIRST AMENDMENT TO THE PROGRESSIVE CORPORATION
EXECUTIVE DEFERRED
COMPENSATION PLAN
(2010 Amendment and Restatement)
WHEREAS
, The Progressive Corporation Executive Deferred Compensation Plan is currently maintained pursuant to a 2010 Amendment and
Restatement (“Plan”); and
WHEREAS
, it is deemed desirable to amend the Plan further;
NOW, THEREFORE
, the Plan is hereby amended in the respects hereinafter set forth:
1. Effective as of December 27, 2012, Section 10.12 of the Plan is hereby amended and restated in its entirety to provide as follows:
“Subject to adjustment as provided below, the total number of shares of Stock reserved and available for issuance in
connection with the Plan is Ten Million Four Hundred Ninety Thousand Seven Hundred Eighty Four (10,490,784). Any Stock issued hereunder may consist, in whole or in part, of authorized and unissued shares or treasury shares. If there is a merger,
reorganization, consolidation, recapitalization, share dividend, share split, reverse split, combination of shares or other change in corporate structure of the Company affecting the Stock, such substitution or adjustment shall be made in the
aggregate number of shares of Stock reserved for issuance under the Plan, and in the number of shares deemed to be held in any Account, as may be approved by the Committee in its sole discretion.”
2. Except as expressly provided in this Amendment, the terms and provisions of the Plan shall remain entirely unchanged and continue in
full force and effect.
IN WITNESS WHEREOF
, the undersigned has hereunto caused this Amendment to be executed by its
duly authorized representative on this 21st day of December, 2012.
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THE PROGRESSIVE CORPORATION
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By:
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/s/ Charles E. Jarrett
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Title:
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Vice President and Secretary
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Exhibit 4.12
The Progressive Corporation
Executive Deferred Compensation Plan
Deferral Agreement
THIS DEFERRAL AGREEMENT is entered into pursuant to the provisions of The Progressive Corporation Executive Deferred Compensation Plan (“Plan”). All capitalized terms in this Agreement shall
have the meanings ascribed to them in the Plan.
1. Deferral Election. I hereby elect to defer receipt of the following portion of my
Gainsharing Award (Eligible Incentive Plans include: The Progressive Corporation 2005 Gainsharing Plan; The Progressive Corporation 2005 Information Technology Incentive Plan; The 2005 Progressive Capital Management Bonus Plan; and The Progressive
Corporation 2004 Executive Bonus Plan) earned in respect to the year ending December 31, 2005
(select one and enter any desired percentage not less than 10%)
I elect to defer % of my entire Gainsharing Award
OR
I elect to defer % of that portion, if any, of my Gainsharing
Award that exceeds $ .
2. Fixed Deferral Period. (The Plan gives you
the option of electing a Fixed Deferral Period. If you elect a Fixed Deferral Period, the balance of your Deferral Account established pursuant to this Agreement will be distributed to you within 30 days after the end of the Fixed Deferral Period,
or, if earlier, the date you die or incur a Termination of Employment or the date a Change in Control occurs. If you do not elect a Fixed Deferral Period, your Account will be distributed upon the earlier of the date you die or incur a Termination
of Employment or the date a Change in Control occurs.) However, for certain executives, distributions due to Termination of Employment will not be made until six months after the employment termination date.
Please select one of the following:
I
elect a Fixed Deferral Period ending
on
(Must be a date at least 3 years after the end of the calendar year in which the Gainsharing Award is earned—January 1,
2009 or later)
OR
I do not wish to elect a Fixed Deferral Period.
3. Method of Distribution. I hereby elect that any distribution of the balance of the Deferral Account established pursuant to this Agreement made on account of Termination of Employment or expiration of
a Fixed Deferral Period be paid as follows:
(check one)
in a single lump sum payment
OR
in
Three annual
installments
Five annual installments
Ten annual installments
I understand that Plan distributions made on account of reasons
other than Termination of Employment or expiration of a Fixed Deferral Period will be made in a single lump sum payment, unless the Plan provides otherwise. I understand that I may change the method of distribution elected above only if and to the
extent permitted by the Plan.
4. Investment Election. I direct that the amount I have deferred pursuant to Section 1 of this Agreement
shall be deemed to be invested in the following Investment Funds in the percentages indicated:
(must be increments of 1%)
|
|
|
|
|
%
|
|
Fidelity Retirement Money Market Portfolio
|
|
%
|
|
PIMCO Total Return Fund — Administrative Class
(1)
|
|
%
|
|
Oakmark Equity and Income Fund — Class 1
|
|
%
|
|
Washington Mutual Investors Fund—Class A
|
|
%
|
|
Fidelity Dividend Growth Fund
|
|
%
|
|
Vanguard Institutional Index Fund — Institutional Class
|
|
%
|
|
Fidelity Mid-Cap Stock Fund
(2)
|
|
%
|
|
American AAdvantage Small Cap Value Fund—Plan Ahead Class
|
|
%
|
|
FMA Small Company Portfolio-Institutional Class
|
|
%
|
|
Wasatch Small Cap Growth Fund
|
|
%
|
|
Fidelity Diversified International Fund
(3)
|
|
%
|
|
Templeton World Fund—Class A
(4)
|
|
%
|
|
The Progressive Corporation Stock Fund
|
|
100%
|
|
TOTAL
|
(1)
There is a short-term trading fee of 2.0% for shares held less than 7 days on the PIMCO Total
Return Fund—Administrative Class.
(2)
There is a short-term trading fee of 0.75% for shares held less than 30 days on Fidelity
Mid-Cap Stock Fund.
(3)
There is a short-term trading fee of 1.0% for shares held less than 30 days on Fidelity Diversified
International Fund.
(4)
There is a short-term trading fee of 2.0% for shares held less than 7 days on the Templeton World
Fund—Class A.
I understand that I may transfer amounts among Investment Funds only to the extent permitted by the Plan. I also
understand that this investment election is merely a device used to determine the amount payable to me under the Plan and does not provide me with any actual rights or interests in any particular funds, securities or property of the Company, any
Affiliated Company or the Trust, in any stock of The Progressive Corporation or in any investment funds offered under the Plan. I also understand that my right to receive distributions under the Plan makes me a general creditor of the Company with
no greater priority than any other general creditor of the Company.
5. Miscellaneous. I understand that this Agreement is subject to the
terms, conditions and limitations of the Plan, as in effect from time to time, in all respects and that, except as expressly permitted by the Plan, all elections made in this Agreement are irrevocable. I acknowledge that I have received, read and
understand the Plan Description dated December, 2004 relating to the Plan. I agree to accept as final and binding all decisions and interpretations of the Committee relating to the Plan, the Trust and this Agreement.
ALSO, I UNDERSTAND THAT THE PLAN IS LIKELY TO BE AMENDED IN SIGNIFICANT RESPECTS FOLLOWING MY EXECUTION OF THIS AGREEMENT. I AGREE TO BE BOUND BY ALL
SUCH AMENDMENTS AND BY ANY CHANGES SUCH AMENDMENTS MAY REQUIRE IN THE TERMS AND CONDITIONS OF THIS AGREEMENT.
NAME OF ELIGIBLE EXECUTIVE:
DATE:
SSN:
Your electronic submission of this Election Form will create a date/time stamp and serve as your signature
2
Exhibit 4.13
The Progressive Corporation
Executive Deferred Compensation Plan
Gainsharing/Bonus Deferral Agreement
THIS DEFERRAL AGREEMENT is entered into pursuant to the provisions of The Progressive Corporation Executive Deferred Compensation Plan (“Plan”). All capitalized terms in this Agreement shall
have the meanings ascribed to them in the Plan.
|
|
1.
|
Deferral Election. I hereby elect to defer receipt of the following portion of my Gainsharing Award (Eligible Incentive Plans include: The Progressive Corporation
Gainsharing Plan; The Progressive Capital Management Bonus Plan; and
The Progressive Corporation Executive Bonus Plan
) earned in respect to the year ending December 31, 2010.
|
Select one and enter any desired percentage not less than 10%:
I elect to defer % of my entire Gainsharing Award OR
I elect to defer % of that portion, if any, of my Gainsharing
Award that exceeds $ .
|
|
2.
|
Fixed Deferral Period. (The Plan gives you the option of electing a Fixed Deferral Period. If you elect a Fixed Deferral Period, the balance of your Deferral Account
established pursuant to this Agreement will be distributed to you within 30 days after the end of the Fixed Deferral Period, or, if earlier, the date you die or incur a Termination of Employment or the date a Change in Control occurs. If you do not
elect a Fixed Deferral Period, your Account will be distributed upon the earlier of the date you die or incur a Termination of Employment or the date a Change in Control occurs.) However, distributions due to Termination of Employment will not be
made until six months after the employment termination date.
|
Please select one of the following:
I wish to elect a Fixed Deferral Period.
I do not wish to elect a Fixed Deferral Period.
3. Method of Distribution. I hereby elect that any distribution of the balance of the Deferral Account established pursuant to this Agreement
made on account of Termination of Employment or expiration of a Fixed Deferral Period be paid as follows:
(Select one)
S
ingle Lump Sum Payment
Three Annual Installments
Five Annual Installments
Ten Annual Installments
I understand that Plan distributions made for reasons other than Termination of Employment or expiration of a Fixed Deferral Period will be made in a
single lump sum payment, unless the Plan provides otherwise. I understand that I may change the method of distribution elected above only if and to the extent permitted by the Plan.
4. Investment Election. I direct that the amount I have deferred pursuant to Section 1 of this Agreement shall be deemed to be invested in the following Investment Funds in the percentages
indicated:
(must be increments of 1%. Total investments must equal 100%.)
|
|
|
|
|
%
|
|
American Beacon Small Cap Value Fund – Institutional Class
|
|
%
|
|
Fidelity Diversified International Fund – Class K (1)
|
|
%
|
|
Fidelity Low-Priced Stock Fund – Class K (2)
|
|
%
|
|
Fidelity Mid-Cap Stock Fund – Class K (3)
|
|
%
|
|
Fidelity Retirement Money Market Portfolio
|
|
%
|
|
The Oakmark Equity and Income Fund—Class I
|
|
%
|
|
PIMCO Total Return Fund – Institutional Class
|
|
%
|
|
The Progressive Corporation Stock Fund
|
|
%
|
|
Vanguard Growth Index Fund – Institutional Shares
|
|
%
|
|
Vanguard Institutional Index Fund – Institutional Shares
|
|
%
|
|
Vanguard Mid-Cap Index Fund – Institutional Shares
|
|
%
|
|
Vanguard Small-Cap Index Fund – Institutional Shares
|
|
%
|
|
Vanguard Total Bond Market Index Fund – Institutional Shares
|
|
%
|
|
Vanguard Total International Stock Index Fund – Investor Shares (4)
|
|
%
|
|
Vanguard Value Index Fund – Institutional Shares
|
|
%
|
|
Wasatch Small Cap Growth Fund (5)
|
|
%
|
|
TOTAL
|
(1) There is a short-term trading fee of 1.0% for shares held less than 30 days on Fidelity Diversified
International Fund – Class K.
(2) There is a short-term trading fee of 1.5% for shares held less than 90 days on Fidelity Low-Priced
Stock Fund – Class K.
(3) There is a short-term trading fee of .75% for shares held less than 30 days on Fidelity Mid-Cap Stock Fund
– Class K.
(4) There is a short-term trading fee of 2.0% for shares held less than 60 days on Vanguard Total International Stock Index
Fund – Investor Shares.
(5) There is a short-term trading fee of 2.0% for shares held less than 60 days on Wasatch Small Cap Growth Fund.
I understand that I may transfer amounts among Investment Funds only to the extent permitted by the Plan. I also understand that this
investment election is merely a device used to determine the amount payable to me under the Plan and does not provide me with any actual rights or interests in any particular funds, securities or property of the Company, any Affiliated Company or
the Trust, in any stock of The Progressive Corporation or in any Investment Funds offered under the Plan. I also understand that my right to receive distributions under the Plan makes me a general creditor of the Company with no greater priority
than any other general creditor of the Company.
5. Miscellaneous. I understand that this Agreement is subject to the terms, conditions and
limitations of the Plan, as in effect from time to time, in all respects and that, except as expressly permitted by the Plan, all elections made in this Agreement are irrevocable. I acknowledge that I have received, read and understand the Plan
Description dated December, 2009 relating to the Plan. I agree to accept as final and binding all decisions and interpretations of the Committee relating to the Plan, the Trust and this Agreement.
2
Exhibit 4.14
The Progressive Corporation
Executive Deferred Compensation Plan
Performance-Based Restricted Stock Deferral Agreement
THIS DEFERRAL AGREEMENT is entered into pursuant to the provisions of The Progressive Corporation Executive Deferred Compensation Plan (“Plan”). All capitalized terms in this Agreement shall
have the meanings ascribed to them in the Plan.
1. Deferral Election. I hereby elect to defer receipt of all Performance-Based Restricted
Stock Awards granted to me in 2004 under The Progressive Corporation 2003 Incentive Plan. This election shall become effective as of the date the restrictions applicable to such Awards (or portion thereof) expire and shall not apply to any Award (or
portion thereof) that fails to vest free of all restrictions.
2. Method of Distribution. I hereby elect that any distribution of the
balance of the Deferral Account established pursuant to this Agreement made on account of Termination of Employment be paid as follows:
(CHECK ONE)
|
|
|
|
|
|
|
Single lump sum payment ( )
|
|
OR
in
|
|
|
|
|
|
Three annual installments ( )
|
|
|
|
Five annual installments ( )
|
|
|
|
Ten annual installments ( )
|
I understand that Plan distributions made on account for reasons other than Termination of Employment will be made in a
single lump sum payment, unless the Plan provides otherwise. I understand that I may change the method of distribution elected above at least one year prior to the date of distribution to the extent permitted by the Plan.
3. Investment of Deferral Account. I understand that each amount credited to the Deferral Account established pursuant to this Agreement shall be deemed
to be invested in the Company Stock Fund for six months and one day following the date that such amount is first credited to such Deferral Account. Thereafter, I understand that I may elect to have such amount deemed to be invested in one or more of
the other Investment Funds available under the Plan. I also understand that these deemed investments are merely devices used to determine the amount payable to me under the Plan and do not provide me with any actual rights or interests in any
particular funds, securities or property of the Company, any Affiliated Company or the Trust, in any stock of The Progressive Corporation or in any Investment Funds offered under the Plan. I also understand that my right to receive distributions
under the Plan makes me a general creditor of the Company with no greater right or priority than any other general creditor of the Company.
4. Miscellaneous. I understand that this Agreement is subject to the terms, conditions and limitations of the Plan, as in effect from time to time, in
all respects and that, except as expressly permitted by the Plan, all elections made in this Agreement are irrevocable. I acknowledge that I have received, read and understand the Plan Description dated December, 2003 relating to the Plan. I agree
to accept as final and binding all decisions and interpretations of the Committee relating to the Plan, the Trust and this Agreement.
NAME
OF ELIGIBLE EXECUTIVE:
DATE:
SSN:
Your electronic submission of this Election Form will create a date/time stamp and
serve as your signature.
Exhibit 4.15
The Progressive Corporation
Executive Deferred Compensation Plan
Performance-Based Restricted Stock Deferral Agreement
THIS DEFERRAL AGREEMENT is entered into pursuant to the provisions of The Progressive Corporation Executive Deferred Compensation Plan (“Plan”). All capitalized terms in this Agreement shall
have the meanings ascribed to them in the Plan.
1. Deferral Election. I hereby elect to defer receipt of all Performance-Based Restricted
Stock Awards granted to me in 2005 under The Progressive Corporation 2003 Incentive Plan. This election shall become effective as of the date the restrictions applicable to such Awards (or portion thereof) expire and shall not apply to any Award (or
portion thereof) that fails to vest free of all restrictions.
2. Method of Distribution. I hereby elect that any distribution of the
balance of the Deferral Account established pursuant to this Agreement made on account of Termination of Employment be paid as follows:
(CHECK ONE)
Single lump sum payment
OR
in
Three annual
installments
Five annual installments
Ten annual installments
I understand
that Plan distributions made on account for reasons other than Termination of Employment will be made in a single lump sum payment, unless the Plan provides otherwise. I understand that I may change the method of distribution elected above only if
and to the extent permitted by the Plan.
3. Investment of Deferral Account. I understand that each amount credited to the Deferral Account
established pursuant to this Agreement shall be deemed to be invested in the Company Stock Fund for six months and one day following the date that such amount is first credited to such Deferral Account. Thereafter, I understand that I may elect to
have such amount deemed to be invested in one or more of the other Investment Funds available under the Plan (except to the extent that the Plan is amended to eliminate the option to choose those other Investment Funds). I also understand that these
deemed investments are merely devices used to determine the amount payable to me under the Plan and do not provide me with any actual rights or interests in any particular funds, securities or property of the Company, any Affiliated Company or the
Trust, in any stock of The Progressive Corporation or in any Investment Funds offered under the Plan. I also understand that my right to receive distributions under the Plan makes me a general creditor of the Company with no greater right or
priority than any other general creditor of the Company.
4. Miscellaneous. I understand that this Agreement is subject to the terms,
conditions and limitations of the Plan, as in effect from time to time, in all respects and that, except as expressly permitted by the Plan, all elections made in this Agreement are irrevocable. I acknowledge that I have received, read and
understand the Plan Description dated December, 2004 relating to the Plan. I agree to accept as final and binding all decisions and interpretations of the Committee relating to the Plan, the Trust and this Agreement.
ALSO, I UNDERSTAND THAT THE PLAN IS LIKELY TO BE AMENDED IN SIGNIFICANT RESPECTS FOLLOWING MY EXECUTION OF THIS AGREEMENT. I AGREE TO BE BOUND BY ALL
SUCH AMENDMENTS AND BY ANY CHANGES SUCH AMENDMENTS MAY REQUIRE IN THE TERMS AND CONDITIONS OF THIS AGREEMENT.
NAME OF ELIGIBLE EXECUTIVE:
DATE:
SSN:
Your electronic submission of this Election Form will create a date/time stamp and serve as your signature.
Exhibit 4.16
The Progressive Corporation
Executive Deferred Compensation Plan
Performance-Based Restricted Stock Deferral Agreement
THIS DEFERRAL AGREEMENT is entered into pursuant to the provisions of The Progressive Corporation Executive Deferred Compensation Plan (“Plan”). All capitalized terms in this Agreement shall
have the meanings ascribed to them in the Plan.
1. Deferral Election. I hereby elect to defer receipt of all Performance-Based Restricted
Stock Awards granted to me in 2006 under The Progressive Corporation 2003 Incentive Plan. This election shall become effective as of the date the restrictions applicable to such Awards (or portion thereof) expire and shall not apply to any Award (or
portion thereof) that fails to vest free of all restrictions.
2. Method of Distribution. I hereby elect that any distribution of the
balance of the Deferral Account established pursuant to this Agreement made on account of Termination of Employment be paid as follows:
(Select one)
|
|
•
|
Single Lump Sum Payment
|
|
|
•
|
Three Annual Installments
|
|
|
•
|
Five Annual Installments
|
|
|
•
|
Ten Annual Installments
|
I understand that Plan
distributions made for reasons other than Termination of Employment will be made in a single lump sum payment, unless the Plan provides otherwise. I understand that I may change the method of distribution elected above only if and to the extent
permitted by the Plan.
3. Investment of Deferral Account. I understand that each amount credited to the Deferral Account established pursuant
to this Agreement shall be deemed to be invested in The Company Stock Fund until the day it is distributed. I also understand that this deemed investment is merely a device used to determine the amount payable to me under the Plan and does not
provide me with any actual rights or interests in any particular funds, securities or property of the Company, any Affiliated Company or the Trust or in any stock of The Progressive Corporation. I also understand that my right to receive
distributions under the Plan makes me a general creditor of the Company with no greater right or priority than any other general creditor of the Company.
4. Miscellaneous. I understand that this Agreement is subject to the terms, conditions and limitations of the Plan, as in effect from time to time, in all respects and that, except as expressly permitted
by the Plan, all elections made in this Agreement are irrevocable. I acknowledge that I have received, read and understand the Plan Description dated December, 2005 relating to the Plan. I agree to accept as final and binding all decisions and
interpretations of the Committee relating to the Plan, the Trust and this Agreement.
ALSO, I UNDERSTAND THAT THE PLAN IS LIKELY TO BE AMENDED
IN SIGNIFICANT RESPECTS FOLLOWING MY EXECUTION OF THIS AGREEMENT. I AGREE TO BE BOUND BY ALL SUCH AMENDMENTS AND BY ANY CHANGES SUCH AMENDMENTS MAY REQUIRE IN THE TERMS AND CONDITIONS OF THIS AGREEMENT.
NAME OF ELIGIBLE EXECUTIVE:
EMPLOYEE
ID:
DATE:
Your
electronic submission of this Election Form will create a date/time stamp and serve as your signature.
Exhibit 4.17
The Progressive Corporation
Executive Deferred Compensation Plan
Performance-Based Restricted Stock Unit Deferral Agreement
THIS DEFERRAL AGREEMENT is entered into pursuant to the provisions of The Progressive Corporation Executive Deferred Compensation Plan (“Plan”). All capitalized terms in this Agreement shall
have the meanings ascribed to them in the Plan.
1. Deferral Election. I hereby elect to defer receipt of all Performance-Based Restricted
Stock Unit Awards granted to me in 2010 under The Progressive Corporation 2003 Incentive Plan. This election shall become effective as of the date the restrictions applicable to such Awards (or portion thereof) expire and shall not apply to any
Award (or portion thereof) that fails to vest free of all restrictions.
2. Method of Distribution. I hereby elect that any
distribution of the balance of the Deferral Account established pursuant to this Agreement made on account of Termination of Employment be paid as follows:
(Select one)
Single Lump Sum Payment
Three Annual Installments
Five
Annual Installments
Ten Annual
Installments
I understand that Plan distributions made on account for reasons other than Termination of Employment will be made in a single
lump sum payment, unless the Plan provides otherwise. I understand that I may change the method of distribution elected above only if and to the extent permitted by the Plan. Distributions due to termination of employment will not be made until six
months after the employment termination date.
3. Investment of Deferral Account. I understand that each amount credited to the Deferral
Account established pursuant to this Agreement shall be deemed to be invested in the Company Stock Fund until the day it is distributed. I also understand that this deemed investment is merely a device used to determine the amount payable to me
under the Plan and does not provide me with any actual rights or interests in any particular funds, securities or property of the Company, any Affiliated Company or the Trust or in any stock of The Progressive Corporation. I also understand that my
right to receive distributions under the Plan makes me a general creditor of the Company with no greater right or priority than any other general creditor of the Company.
4. Miscellaneous. I understand that this Agreement is subject to the terms, conditions and limitations of the Plan, as in effect from time to time, in all respects and that, except as expressly permitted
by the Plan, all elections made in this Agreement are irrevocable. I acknowledge that I have received, read and understand the Plan Description dated December, 2009 relating to the Plan. I agree to accept as final and binding all decisions and
interpretations of the Committee relating to the Plan, the Trust and this Agreement.
Exhibit 4.18
The Progressive Corporation
Executive Deferred Compensation Plan
Time-Based Restricted Stock Deferral Agreement
THIS DEFERRAL AGREEMENT is entered into pursuant to the provisions of The Progressive Corporation Executive Deferred Compensation Plan (“Plan”). All capitalized terms in this Agreement shall
have the meanings ascribed to them in the Plan.
1. Deferral Election. I hereby elect to defer receipt of all Time-Based Restricted Stock
Awards granted to me in 2003 under The Progressive Corporation 2003 Incentive Plan. This election shall become effective as of the date the restrictions applicable to such Awards (or portion thereof) expire and shall not apply to any Award (or
portion thereof) that fails to vest free of all restrictions.
2. Fixed Deferral Period. (The Plan gives you the option of electing a Fixed
Deferral Period. If you elect a Fixed Deferral Period, the balance of your Deferral Account established pursuant to this Agreement will be distributed to you within 30 days after the end of the Fixed Deferral Period, or, if earlier, the date you die
or incur a Termination of Employment or the date a Change in Control occurs. If you do not elect a Fixed Deferral Period, your Account will be distributed upon the earlier of the date you die or incur a Termination of Employment or the date a Change
in Control occurs.)
Please check one of the following:
I elect a Fixed Deferral Period ending upon attainment of age
43
47
51
55
59
(Must
attain age selected at least 3 years after the end of the calendar year in which the Restricted Stock Award becomes fully vested. For example, if a Time-Based Restricted Stock Award vests in three equal installments in years 2006, 2007 and 2008, you
must select an age you will attain at least 3 years after the last installment vests (in this case, your age no earlier than 2011.)
OR
I do not
wish to elect a Fixed Deferral Period.
3. Method of Distribution. I hereby elect that any distribution of the balance of the Deferral
Account established pursuant to this Agreement made on account of Termination of Employment or expiration of a Fixed Deferral Period be paid as follows:
(check one)
in a single lump sum payment
OR
in
Three annual
installments
Five annual installments
Ten annual installments
I understand
that Plan distributions made on account of reasons other than Termination of Employment or expiration of a Fixed Deferral Period will be made in a single lump sum payment, unless the Plan provides otherwise. I understand that I may change the method
of distribution elected above at least one year prior to the date of distribution to the extent permitted by the Plan.
4. Investment of
Deferral Account. I understand that each amount credited to the Deferral Account established pursuant to this Agreement shall be deemed to be invested in The Progressive Corporation Stock Fund for six months and one day following the date that such
amount is first credited to such Deferral Account. Thereafter, I understand that I may elect to have such amount deemed to be invested in one or more of the other Investment Funds available under the Plan. I also understand that these deemed
investments are merely devices used to
determine the amount payable to me under the Plan and do not provide me with any actual rights or interests in any particular funds, securities or property of the Company, any Affiliated Company
or the Trust, in any stock of The Progressive Corporation or in any Investment Funds offered under the Plan. I also understand that my right to receive distributions under the Plan makes me a general creditor of the Company with no greater right or
priority than any other general creditor of the Company.
5. Miscellaneous. I understand that this Agreement is subject to the terms,
conditions and limitations of the Plan, as in effect from time to time, in all respects and that, except as expressly permitted by the Plan, all elections made in this Agreement are irrevocable. I acknowledge that I have received, read and
understand the Plan Description dated March, 2003 relating to the Plan. I agree to accept as final and binding all decisions and interpretations of the Committee relating to the Plan, the Trust and this Agreement.
NAME OF ELIGIBLE EXECUTIVE:
DATE:
SSN:
Your electronic submission of this Election Form will create a date/time stamp and serve as your signature
Received and accepted on behalf of the Committee this day of
, .
- 2 -
Exhibit 4.19
The Progressive Corporation
Executive Deferred Compensation Plan
Time-Based Restricted Stock Deferral Agreement
THIS DEFERRAL AGREEMENT is entered into pursuant to the provisions of The Progressive Corporation Executive Deferred Compensation Plan (“Plan”). All capitalized terms in this Agreement shall
have the meanings ascribed to them in the Plan.
1. Deferral Election. I hereby elect to defer receipt of all Time-Based Restricted Stock
Awards granted to me in 2004 under The Progressive Corporation 2003 Incentive Plan. This election shall become effective as of the date the restrictions applicable to such Awards (or portion thereof) expire and shall not apply to any Award (or
portion thereof) that fails to vest free of all restrictions.
2. Fixed Deferral Period. (The Plan gives you the option of electing a Fixed
Deferral Period. If you elect a Fixed Deferral Period, the balance of your Deferral Account established pursuant to this Agreement will be distributed to you within 30 days after the end of the Fixed Deferral Period, or, if earlier, the date you die
or incur a Termination of Employment or the date a Change in Control occurs. If you do not elect a Fixed Deferral Period, your Account will be distributed within 30 days of the earlier of the date you die or incur a Termination of Employment or the
date a Change in Control occurs.)
Please SELECT ONE of the following:
I elect a Fixed Deferral Period ending on
.*
|
*
|
Must be a date at least 3 years after the end of the calendar year in which the Restricted Stock Award becomes fully vested. For example, if a Time-Based
Restricted Stock Award vests in three equal installments in 2007, 2008 and 2009, you must select a date at least 3 years after the end of the calendar in which the last installment vests (in this case, no earlier than January 1, 2013).
|
OR
I
do not wish to elect a Fixed Deferral Period ( ).
3. Method of Distribution. I hereby elect that any
distribution of the balance of the Deferral Account established pursuant to this Agreement made on account of Termination of Employment or expiration of a Fixed Deferral Period be paid as follows:
(CHECK ONE)
Single lump sum payment ( )
OR
in
Three annual installments ( )
Five annual installments ( )
Ten annual installments ( )
I understand that Plan
distributions made on account for reasons other than Termination of Employment or expiration of a Fixed Deferral Period will be made in a single lump sum payment, unless the Plan provides otherwise. I understand that I may change the method of
distribution elected above at least one year prior to the date of distribution to the extent permitted by the Plan.
4. Investment of Deferral
Account. I understand that each amount credited to the Deferral Account established pursuant to this Agreement shall be deemed to be invested in The Company Stock Fund for six months and one day following the date that such amount is first credited
to such Deferral Account. Thereafter, I understand that I may elect to have such amount deemed to be invested in one or more of the other Investment Funds available under the Plan. I also understand that these deemed investments are merely devices
used to determine the amount payable to me under the Plan and do not provide me with any actual rights or interests in any particular funds, securities or property of the Company, any Affiliated Company or the Trust, in any stock of The Progressive
Corporation or in any Investment Funds offered under the Plan. I also understand that my right to receive distributions under the Plan makes me a general creditor of the Company with no greater right or priority than any other general creditor of
the Company.
5. Miscellaneous. I understand that this Agreement is subject to the terms, conditions and limitations of the Plan, as in effect
from time to time, in all respects and that, except as expressly permitted by the Plan, all elections made in this Agreement are irrevocable. I acknowledge that I have received, read and understand the Plan Description dated December, 2003 relating
to the Plan. I agree to accept as final and binding all decisions and interpretations of the Committee relating to the Plan, the Trust and this Agreement.
NAME OF ELIGIBLE EXECUTIVE:
DATE:
SSN:
Your electronic submission of this
Election Form will create a date/time stamp and serve as your signature.
Exhibit 4.20
The Progressive Corporation
Executive Deferred Compensation Plan
Time-Based Restricted Stock Deferral Agreement
THIS DEFERRAL AGREEMENT is entered into pursuant to the provisions of The Progressive Corporation Executive Deferred Compensation Plan (“Plan”). All capitalized terms in this Agreement shall
have the meanings ascribed to them in the Plan.
1. Deferral Election. I hereby elect to defer receipt of all Time-Based Restricted Stock
Awards granted to me in 2005 under The Progressive Corporation 2003 Incentive Plan. This election shall become effective as of the date the restrictions applicable to such Awards (or portion thereof) expire and shall not apply to any Award (or
portion thereof) that fails to vest free of all restrictions.
2. Fixed Deferral Period. (The Plan gives you the option of electing a Fixed
Deferral Period. If you elect a Fixed Deferral Period, the balance of your Deferral Account established pursuant to this Agreement will be distributed to you within 30 days after the end of the Fixed Deferral Period, or, if earlier, the date you die
or incur a Termination of Employment or the date a Change in Control occurs. If you do not elect a Fixed Deferral Period, your Account will be distributed within 30 days after the earlier of the date you die or incur a Termination of Employment or
the date a Change in Control occurs.) However, for certain executives, distributions due to Termination of Employment will not be made until six months after the employment termination date.
Please SELECT ONE of the following:
I elect a Fixed Deferral Period ending on
.*
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*
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Must be a date at least 3 years after the end of the calendar year in which the Restricted Stock Award becomes fully vested. For example, if a Time-Based
Restricted Stock Award vests in three equal installments in 2007, 2008 and 2009, you must select a date at least 3 years after the end of the calendar year in which the last installment vests (in this case, no earlier than January 1, 2013.)
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OR
I do not wish to elect a Fixed Deferral Period
.
3. Method of Distribution. I hereby elect that any distribution of the balance of the Deferral Account established pursuant to this Agreement made
on account of Termination of Employment or expiration of a Fixed Deferral Period be paid as follows:
(CHECK ONE)
Single lump sum payment
OR
in
Three annual installments
Five annual installments
Ten annual installments
I understand
that Plan distributions made on account for reasons other than Termination of Employment or expiration of a Fixed Deferral Period will be made in a single lump sum payment, unless the Plan provides otherwise. I understand that I may change the
method of distribution elected above only if and to the extent permitted by the Plan.
4. Investment of Deferral Account. I understand that
each amount credited to the Deferral Account established pursuant to this Agreement shall be deemed to be invested in The Company Stock Fund for six months and one day following the date that such amount is first credited to such Deferral Account.
Thereafter, I understand that I may elect to have such amount deemed to be invested in one or more of the other Investment Funds available under the Plan (except to the extent that the Plan is amended to eliminate the option to choose those other
Investment Funds). I also understand that these deemed investments are merely devices used to determine the amount payable to me under the Plan and do not provide me with any actual rights or interests in any particular funds, securities or property
of the Company, any Affiliated Company or the Trust, in any stock of The Progressive Corporation or in any Investment Funds offered under the Plan. I also understand that my right to receive distributions under the Plan makes me a general creditor
of the Company with no greater right or priority than any other general creditor of the Company.
5. Miscellaneous. I understand that this
Agreement is subject to the terms, conditions and limitations of the Plan, as in effect from time to time, in all respects and that, except as expressly permitted by the Plan, all elections made in this Agreement are
irrevocable. I acknowledge that I have received, read and understand the Plan Description dated December, 2004 relating to the Plan. I agree to accept as final and binding all decisions and
interpretations of the Committee relating to the Plan, the Trust and this Agreement.
ALSO, I UNDERSTAND THAT THE PLAN IS LIKELY TO BE AMENDED
IN SIGNIFICANT RESPECTS FOLLOWING MY EXECUTION OF THIS AGREEMENT. I AGREE TO BE BOUND BY ALL SUCH AMENDMENTS AND BY ANY CHANGES SUCH AMENDMENTS MAY REQUIRE IN THE TERMS AND CONDITIONS OF THIS AGREEMENT.
NAME OF ELIGIBLE EXECUTIVE:
DATE:
SSN:
Your electronic
submission of this Election Form will create a date/time stamp and serve as your signature.
2
Exhibit 4.21
The Progressive Corporation
Executive Deferred Compensation Plan
Time-Based Restricted Stock Deferral Agreement
THIS DEFERRAL AGREEMENT is entered into pursuant to the provisions of The Progressive Corporation Executive Deferred Compensation Plan (“Plan”). All capitalized terms in this Agreement shall
have the meanings ascribed to them in the Plan.
1. Deferral Elections. I hereby elect to defer receipt of all Time-Based Restricted Stock
Awards granted to me in 2006 under The Progressive Corporation 2003 Incentive Plan. This election shall become effective as of the date the restrictions applicable to such Awards (or portion thereof) expire and shall not apply to any Award (or
portion thereof) that fails to vest free of all restrictions.
2. Fixed Deferral Period. (The Plan gives you the option of electing a Fixed
Deferral Period. If you elect a Fixed Deferral Period, the balance of your Deferral Account established pursuant to this Agreement will be distributed to you within 30 days after the end of the Fixed Deferral Period, or, if earlier, the date you die
or incur a Termination of Employment or the date a Change in Control occurs. If you do not elect a Fixed Deferral Period, your Account will be distributed within 30 days after the earlier of the date you die or incur a Termination of Employment or
the date a Change in Control occurs.) However, for certain executives, distributions due to Termination of Employment will not be made until six months after the employment termination date.
Please select one of the following:
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•
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I wish to elect a Fixed Deferral Period.
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•
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I do not wish to elect a Fixed Deferral Period.
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I elect a fixed Deferral Period ending on [ ]
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(*
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Must be a date at least 3 years after the end of the calendar year in which the Restricted Stock Award becomes fully vested. For example, if a Time-Based
Restricted Stock Award vests in three equal installments in 2009, 2010 and 2011, you must select a date at least 3 years after the end of the calendar year in which the last installment vests (in this case, no earlier then – 01/01/2015).
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3. Method of Distribution. I hereby elect that any distribution of the balance of the Deferral Account established
pursuant to this Agreement made on account of Termination of Employment or expiration of a Fixed Deferral Period be paid as follows:
(Select one)
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•
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Single Lump Sum payment
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•
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Three Annual Installments
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•
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Five Annual Installments
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•
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Ten Annual Installments
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I understand that Plan distributions made for reasons other than Termination of Employment or expiration of a Fixed Deferral Period will be made in a single lump sum payment, unless the Plan provides
otherwise. I understand that I may change the method of distribution elected above only if and to the extent permitted by the Plan.
4.
Investment of Deferral Account. I understand that each amount credited to the Deferral Account established pursuant to this Agreement shall be deemed to be invested in The Company Stock Fund until the day it is distributed. I also understand that
this deemed investment is merely a device used to
determine the amount payable to me under the Plan and does not provide me with any actual rights or
interests in any particular funds, securities or property of the Company, any Affiliated Company or the Trust or in any stock of The Progressive Corporation. I also understand that my right to receive distributions under the Plan makes me a general
creditor of the Company with no greater right or priority than any other general creditor of the Company.
5. Miscellaneous. I understand that
this Agreement is subject to the terms, conditions and limitations of the Plan, as in effect from time to time, in all respects and that, except as expressly permitted by the Plan, all elections made in this Agreement are irrevocable. I acknowledge
that I have received, read and understand the Plan Description dated December, 2005 relating to the Plan. I agree to accept as final and binding all decisions and interpretations of the Committee relating to the Plan, the Trust and this Agreement.
ALSO, I UNDERSTAND THAT THE PLAN IS LIKELY TO BE AMENDED IN SIGNIFICANT RESPECTS FOLLOWING MY EXECUTION OF THIS AGREEMENT. I AGREE TO BE
BOUND BY ALL SUCH AMENDMENTS AND BY ANY CHANGES SUCH AMENDMENTS MAY REQUIRE IN THE TERMS AND CONDITIONS OF THIS AGREEMENT.
NAME OF
ELIGIBLE EXECUTIVE:
EMPLOYEE ID:
DATE:
Your electronic submission of this Election Form will create a date/time stamp and
serve as your signature.
Exhibit 4.22
The Progressive Corporation
Executive Deferred Compensation Plan
Time-Based Restricted Stock Unit Deferral Agreement
THIS DEFERRAL AGREEMENT is entered into pursuant to the provisions of The Progressive Corporation Executive Deferred Compensation Plan (“Plan”). All capitalized terms in this Agreement shall
have the meanings ascribed to them in the Plan.
1. Deferral Election. I hereby elect to defer receipt of all Time-Based Restricted Stock Unit
Awards granted to me in 2010 under The Progressive Corporation 2003 Incentive Plan. This election shall become effective as of the date the restrictions applicable to such Awards (or portion thereof) expire and shall not apply to any Award (or
portion thereof) that fails to vest free of all restrictions.
2. Fixed Deferral Period. (The Plan gives you the option of electing a Fixed
Deferral Period. If you elect a Fixed Deferral Period, the balance of your Deferral Account established pursuant to this Agreement will be distributed to you within 30 days after the end of the Fixed Deferral Period, or, if earlier, the date you die
or incur a Termination of Employment or the date a Change in Control occurs. If you do not elect a Fixed Deferral Period, your Account will be distributed within 30 days after the earlier of the date you die or incur a Termination of Employment or
the date a Change in Control occurs.) However, distributions due to Termination of Employment will not be made until six months after the employment termination date.
Please select one of the following:
I wish to elect a Fixed Deferral Period.
I do not wish to elect a Fixed Deferral Period.
3. Method of Distribution. I hereby elect that any distribution of the balance of the Deferral Account established pursuant to this Agreement made
on account of Termination of Employment or expiration of a Fixed Deferral Period be paid as follows:
(Select one)
Single Lump Sum payment
Three Annual Installments
Five Annual Installments
Ten Annual Installments
I understand that Plan distributions made for reasons other than Termination of Employment or expiration of a Fixed Deferral Period will be made in a
single lump sum payment, unless the Plan provides otherwise. I understand that I may change the method of distribution elected above only if and to the extent permitted by the Plan.
4. Investment of Deferral Account. I understand that each amount credited to the Deferral Account established pursuant to this Agreement shall be deemed to be invested in The Company Stock Fund until the
day it is distributed. I also understand that this deemed investment is merely a device used to determine the amount payable to me under the Plan and does not provide me with any actual rights or interests in any particular funds, securities or
property of the Company, any Affiliated Company or the Trust or in any stock of The Progressive Corporation. I also understand that my right to receive distributions under the Plan makes me a general creditor of the Company with no greater right or
priority than any other general creditor of the Company.
5. Miscellaneous. I understand that this Agreement is subject to the terms,
conditions and limitations of the Plan, as in effect from time to time, in all respects and that, except as expressly permitted by the Plan, all elections made in this Agreement are irrevocable. I acknowledge that I have received, read and
understand the Plan Description dated December, 2009 relating to the Plan. I agree to accept as final and binding all decisions and interpretations of the Committee relating to the Plan, the Trust and this Agreement.
Exhibit 4.23
THE PROGRESSIVE CORPORATION
EXECUTIVE DEFERRED COMPENSATION TRUST
(NOVEMBER 8, 2002 AMENDMENT AND RESTATEMENT)
WHEREAS, The Progressive Corporation Executive Deferred Compensation Trust is currently maintained pursuant to a December 1, 1998 Amendment and Restatement between The Progressive Corporation
(“Company”) and American Express Trust Company (“American Express”) as trustee, and the First Amendment thereto; and
WHEREAS, American Express has been removed as trustee effective upon the close of business on November 8, 2002; and
WHEREAS, Company has designated Fidelity Management Trust Company (“Trustee”) as the new trustee of the Plan effective November 8, 2002; and
WHEREAS, Company and Trustee desire to amend and restate the Trust Agreement to reflect the designation of Fidelity Management Trust
Company as Trustee and to make certain other changes in the Trust;
NOW, therefore, effective November 8, 2002, Company
and Trustee hereby amend and restate the Trust Agreement in its entirety to provide as follows:
SECTION 1. Establishment of Trust
(a) Company hereby deposits with Trustee in trust Ten Dollars ($10.00), which shall become the principal of the Trust to be held, administered and
disposed of by Trustee as provided in this Trust Agreement.
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(b)
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The Trust hereby established shall be irrevocable.
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(c) The Trust is intended to be a grantor trust, of which Company is the grantor, within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of the Internal Revenue Code of 1986, as
amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held separate and apart from
other funds of Company and shall be used exclusively for the uses and purposes of Plan participants and general creditors as herein set forth. Plan participants and their beneficiaries shall have no preferred claim on, or any beneficial ownership
interest in, any assets of the Trust. Any rights created under the Plan and this Trust Agreement shall be mere unsecured contractual rights of Plan participants and their beneficiaries against Company. Any assets held by the Trust will be subject to
the claims of Company’s general creditors under federal and state law in the event of Insolvency, as defined in Section 3(a) herein. Any assets held by the Trust will also be subject to the federal and state law claims of general creditors
of each subsidiary of Company that employs Plan participants (“Subsidiary”) in the event of Insolvency, as defined in Section 3(a) herein, but only to the extent of the amounts due under the Plan to participants attributable to the
period that such participants were employed by such Subsidiary.
(e) Within 30 days following the end of the Plan year(s), ending after the
Trust has become irrevocable pursuant to Section 1(b) hereof, Company shall be required to irrevocably deposit additional cash or other property to the Trust in an amount sufficient to pay each Plan participant or beneficiary the benefits
payable pursuant to the terms of the Plan as of the close of the Plan year(s). Trustee shall have no duty to enforce any funding obligations of Company and the duties of Trustee shall be governed solely by the terms of the Trust without reference to
the Plan.
SECTION 2. Payments to Plan Participants and Their Beneficiaries
(a) Company shall deliver to Trustee a schedule (the “Payment Schedule”) that indicates the amounts payable in respect of each Plan participant (and his or her beneficiaries), that provides a
formula or other instructions acceptable to Trustee for determining the amounts so payable, the form in which such amount is to be paid (as provided for or available under the Plan), and the time of commencement for payment of such amounts. Except
as otherwise provided herein, Trustee shall make payments to the Plan participants and their beneficiaries in accordance with such Payment Schedule. Company shall have the sole responsibility for all tax withholding, filings and reports. Trustee
shall withhold such amounts from distributions as
Company may direct and shall follow the instructions of Company with respect to remission of such withheld amounts to appropriate governmental authorities.
(b) The entitlement of a Plan participant or his or her beneficiaries to benefits under the Plan shall be determined by Company or such party as it shall
designate under the Plan, and any claim for such benefits shall be considered and reviewed under the procedures set out in the Plan.
(c)
Company may make payment of benefits directly to Plan participants or their beneficiaries as they become due under the terms of the Plan. Company shall notify Trustee of its decision to make payment of benefits directly prior to the time amounts are
payable to participants or their beneficiaries. In addition, if the principal of the Trust, and any earnings thereon, are not sufficient to make payments of benefits in accordance with the terms of the Plan, Company shall make the balance of each
such payment as it falls due. Trustee shall notify Company where principal and earnings are not sufficient to make a payment then due under the Payment Schedule.
SECTION 3. Trustee Responsibility Regarding Payments to Trust Beneficiary When Company is Insolvent.
(a) Trustee shall cease payment of benefits to Plan participants and their beneficiaries if the Company, or any subsidiary that ever employed such participants, is Insolvent, subject to the provisions of
Section 3(b) below. Company or a Subsidiary shall be considered “Insolvent” for purposes of this Trust Agreement if (i) Company or such Subsidiary is unable to pay its debts as they become due, or (ii) Company or such
Subsidiary is subject to a pending proceeding as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of
this Trust, as provided in Section 1(d) hereof, the principal and income of the Trust shall be subject to claims of general creditors of Company and, to the extent provided in Section 1(d), each Subsidiary, under federal and state law as
set forth below.
(1) The Board of Directors and the Chief Executive Officer of Company shall have the duty to inform Trustee
in writing of Company’s or any Subsidiary’s Insolvency. If a person claiming to be a creditor of Company or a Subsidiary alleges in writing to Trustee that Company or such Subsidiary has become Insolvent, Trustee shall determine whether
Company or such Subsidiary is Insolvent and, pending such determination, Trustee shall discontinue payment of benefits to Plan participants or their beneficiaries.
(2) Unless Trustee has actual knowledge of Company’s or any Subsidiary’s Insolvency, or has received notice from Company or a Subsidiary or a person claiming to be a creditor alleging that
Company or a Subsidiary is Insolvent, Trustee shall have no duty to inquire whether Company or a Subsidiary is Insolvent. Trustee may in all events rely on such evidence concerning Company’s or any Subsidiary’s solvency as may be furnished
to Trustee and that provides Trustee with a reasonable basis for making a determination concerning Company’s or any Subsidiary’s solvency. Trustee may appoint an independent accounting or consulting firm to make any determination required
by Trustee under this Section 3, in which event Trustee may conclusively rely upon the determination by such firm and shall be responsible only for the prudent selection of the firm.
(3) If at any time Trustee has determined that Company or a Subsidiary is Insolvent, Trustee shall discontinue payments to all Plan
participants and their beneficiaries (if Company is Insolvent) or Plan participants who were ever employed by such Subsidiary (if such Subsidiary is Insolvent), and shall hold the assets of the Trust for the benefit of Company’s or such
Subsidiary’s general creditors. Nothing in this Trust Agreement shall in any way diminish any rights of Plan participants or their beneficiaries to pursue their rights as general creditors of Company with respect to benefits due under the Plan
or otherwise. Company shall be responsible for furnishing Trustee with current information regarding identities of Subsidiaries and participants who were ever employed by each such Subsidiary.
(4) Trustee shall resume the payment of benefits to Plan participants or their beneficiaries in accordance with Section 2 of this Trust
Agreement only after Trustee has determined that Company, or a Subsidiary as the case may be, is not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues the payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such discontinuance shall include the aggregate amount of all payments due to Plan participants or their beneficiaries under the terms of the Plan for the period of such discontinuance,
less the aggregate amount of any payments made to Plan participants or their beneficiaries by Company in lieu of the payments provided for hereunder during any such period of discontinuance, all in accordance with the Payment Schedule, which shall
be modified by Company as necessary to comply with the provisions of this paragraph (c).
2
SECTION 4. Payments to Company.
Except as provided in Section 3 hereof, after the Trust has become irrevocable, Company shall have no right or power to direct Trustee to return to Company or to divert to others any of the Trust
assets before all payment of benefits have been made to Plan participants and their beneficiaries pursuant to the terms of the Plan.
SECTION
5. Investment Authority.
(a) Selection of Investment Options. The Trustee shall have no responsibility for the selection of
investment options under the Trust and shall not render investment advice to any person in connection with the selection of such options.
(b) Available Investment Options. The Company shall direct the Trustee as to what investment options the Trust shall be invested in (i) during the period beginning on the initial transfer of assets
to the Trust and ending on the completion of the reconciliation of Trust records (the “reconciliation period”), and (ii) following the reconciliation period, subject to the following limitations. The Company may determine to offer as
investment options only (i) publicly-traded common stock issued by the Company (“Company Stock”)”, and (ii) securities issued by the investment companies advised by Fidelity Management & Research Company and certain
investment companies not advised by Fidelity Management & Research Company identified collectively as Mutual Funds on Schedule “A” attached hereto; provided, however, that the Trustee shall not be considered a fiduciary with
investment discretion. The Company may add or remove investment options with the consent of the Trustee (which shall not be unreasonably withheld) and upon mutual amendment of this Trust Agreement and the Schedules thereto to reflect such additions.
(c) Investment Directions. The Company shall direct the Trustee as to the investment of Trust assets. In order to provide for
an accumulation of assets comparable to the contractual liabilities accruing under the Plan, the Company may direct the Trustee in writing to invest the assets held in the Trust to correspond to the hypothetical investments made for Participants
under the Plan. Such directions may be made by Plan participants by use of the telephone exchange system, the internet or such other electronic means as may be agreed upon from time to time by the Company and the Trustee, maintained for such
purposes by the Trustee or its agents, in accordance with written Exchange Guidelines attached hereto as Schedule “E”. In the event that the Trustee fails to receive a proper direction from the Company or from Participants, the assets in
question shall be invested in Fidelity Retirement Money Market Portfolio until the Trustee receives a proper direction.
The
Company’s designation of available investment options under paragraphs (a) and (b) above, the maintenance of accounts for each Plan participant and the crediting of hypothetical shares of Company Stock or other investments to such
accounts, the giving of investment directions by participants under this paragraph (c), and the exercise by participants of any other powers relating to investments under this Section 4 are solely for the purpose of providing a mechanism for
measuring the obligation of the Company to any particular participant under the applicable Plan. As provided in Section 1(d) above, no participant or beneficiary will have any preferential claim to or beneficial ownership interest in any asset
or investment of the Trust, and the rights of any participant and his or her beneficiaries under the applicable Plan and the Trust are solely those of an unsecured general creditor of the Company with respect to the benefits of the participant under
the Plan.
(d) Mutual Funds. The Company hereby acknowledges that it has received from the Trustee a copy of the prospectus
for each Mutual Fund selected by the Company as a Plan investment option. Trust investments in Mutual Funds shall be subject to the following limitations:
(i) Execution of Purchases and Sales. Purchases and sales of Mutual Funds (other than for Exchanges) shall be made on the date on which the Trustee receives from the Company in good order all information
and documentation necessary to accurately effect such purchases and sales (or in the case of a purchase, the subsequent date on which the Trustee has received a wire transfer of funds necessary to make such purchase). Transactions involving Mutual
Funds not advised by Fidelity Management & Research Company shall be executed in accordance with the operating procedures set forth in Schedule “D” attached hereto. Exchanges of Fidelity Mutual Funds shall be made on the same
business day that the Trustee receives a proper direction if received before market close (generally 4:00 p.m. eastern time); if the direction is received after market close (generally 4:00 p.m. eastern time), the exchange shall be made the
following day.
(ii) Voting. At the time of mailing of notice of each annual or special stockholders’ meeting of any
Mutual Fund, the Trustee shall send a copy of the notice and all proxy solicitation materials to the Company, together with a voting direction form for return to the Trustee or its designee. The Trustee shall vote the shares held in the Trust in the
same manner as directed by the Company. The Trustee shall not vote shares for which it has received no corresponding directions from the Company. With respect to all rights other than the right to vote, the Trustee shall follow the directions of the
Company.
3
(e) Company Stock. Trust investments in Company Stock shall be subject to the following
limitations:
(i) Acquisition Limit. The Trust may be invested in Company Stock to the extent directed by the Company. The
Company shall have the responsibility to determine and monitor the suitability of Company Stock as an investment medium under the Trust.
(ii) Acquisition of Company Stock. The Company shall continually monitor the suitability of acquiring and holding Company Stock. The Trustee shall not be liable for any loss, or expense, which arises from
the directions of the Company with respect to the acquisition and holding of Company Stock, unless it is clear on their face that the actions to be taken under those directions would be prohibited by any applicable law or would be contrary to the
terms of this Agreement.
(iii) Execution of Purchases and Sales.
(A) Purchases and sales of Company Stock (other than for exchanges) shall be made on the open market on the date on which the Trustee
receives from the Company in good order all information, documentation, and wire transfer of funds (if applicable), necessary to accurately effect such transactions. Exchanges of Company Stock shall be made in accordance with the Exchange Guidelines
attached hereto as Schedule “E”. Such general rules shall not apply in the following circumstances:
(1) If the
Trustee is unable to purchase or sell the total number of shares required to be purchased or sold on such day as a result of market conditions; or
(2) If the Trustee is prohibited by the Securities and Exchange Commission, the New York Stock Exchange, or any other regulatory body from purchasing or selling any or all of the shares required to be
purchased or sold on such day.
In the event of the occurrence of the circumstances described in (1) or (2) above, the Trustee shall
purchase or sell such shares as soon as possible thereafter and shall determine the price of such purchases or sales to be the average purchase or sales price of all such shares purchased or sold, respectively. The Trustee may follow directions from
the Company to deviate from the above purchase and sale procedures provided that such direction is made in writing by the Company.
(B) Purchases and Sales from or to Company. If directed by the Company in writing prior to the trading date, the Trustee may purchase or sell Company Stock from or to the Company if the purchase or sale
is for adequate consideration and no commission is charged.
(C) Use of an Affiliated Broker. The Company hereby directs the
Trustee to use Fidelity Capital Markets (“Capital Markets”) to provide brokerage services in connection with any purchase or sale of Company Stock. Capital Markets shall execute such directions directly or through its affiliate, National
Financial Services Company (“NFSC”). The provision of brokerage services shall be subject to the following:
(1) As
consideration for such brokerage services, the Company agrees that Capital Markets shall be entitled to remuneration under this authorization provision in the amount of five cents ($.05) commission on each share of Company Stock up to 10,000 shares
in a singular transaction, four cents ($.04) commission on each share of Company Stock from 10,001 to 19,999 shares in a singular transaction, and three and four-tenth cents ($.034) commission on each share of Company Stock in excess of 19,999
shares in a singular transaction. Any increase in such remuneration may be made only by a signed agreement between Company and Trustee.
(2) The Trustee will provide the Company with the following: a description of Capital Markets’ brokerage placement practices and a form by which the Company may terminate this direction to use a
broker affiliated with the Trustee. The Trustee will provide the Company with this termination form annually, as well as quarterly and annual reports which summarize all securities transaction-related charges incurred by the Plan.
(3) Any successor organization of Capital Markets, through reorganization, consolidation, merger or similar transactions, shall, upon
consummation of such transaction, become the successor broker in accordance with the terms of this authorization provision.
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(4) The Trustee and Capital Markets shall continue to rely on this direction provision
until notified to the contrary. The Company reserves the right to terminate this direction upon written notice to Capital Markets (or its successor) and the Trustee.
(iv) Securities Law Reports. The Company shall be responsible for filing all reports required under Federal or state securities laws with respect to the Trust’s ownership of Company Stock, including,
without limitation, any reports required under section 13 or 16 of the Securities Exchange Act of 1934, and shall immediately notify the Trustee in writing of any requirement to stop purchases or sales of Company Stock pending the filing of any
report. The Company shall be responsible for the registration of any Plan interests to the extent required under Federal or state securities law. The Trustee shall provide to the Company such information on the Trust’s ownership of Company
Stock as the Company may reasonably request in order to comply with Federal or state securities laws.
(v) Voting and Tender
Offers. Notwithstanding any other provision of this Agreement the provisions of this Section shall govern the voting and tendering of Company Stock. The Company shall pay for all printing, mailing, tabulation and other costs associated with the
voting and tendering of Company Stock. The Trustee, after consultation with the Company, shall prepare the necessary documents associated with the voting and tendering of Company Stock.
(A) Voting. When the issuer of Company Stock prepares for any annual or special meeting, the Company shall notify the Trustee at least
thirty (30) days in advance of the intended record date and shall cause a copy of all proxy solicitation materials to be sent to the Trustee. The Trustee shall prepare a voting instruction form and shall provide a copy to the Company, to be
returned to the Trustee or its designee. Upon its receipt of the directions, the Trustee shall vote the shares of Company Stock as directed by the Company. Except as otherwise required by law, the Trustee shall not vote shares of Company Stock for
which it has received no directions from the Company.
(B) Tender Offers. Upon commencement of a tender offer for any
securities held in the Trust that are Company Stock, the Company shall timely notify the Trustee in advance of the intended tender date and shall cause a copy of all materials to be sent to the Trustee. The Trustee shall prepare a tender instruction
form and shall provide a copy to the Company, to be returned to the Trustee or its designee. Upon receipt of directions, the Trustee shall tender or not tender shares of Company Stock as directed by the Company. Except as otherwise required by law,
the Trustee shall not tender shares of Company Stock for which it has received no directions from the Company. Pending receipt of directions from the Company as to which of the remaining investment options the proceeds should be invested in, the
Trustee shall invest the proceeds in Fidelity Retirement Money Market Portfolio.
(vi) General. With respect to all rights
other than the right to vote, the right to tender, and the right to withdraw shares previously tendered, in the case of Company Stock credited to a participant’s accounts, the Trustee shall follow the directions of the Company.
(vii) Conversion. All provisions in this Section 5(e) shall also apply to any securities received as a result of a conversion of
Company Stock.
SECTION 6. Disposition of Income.
(a) During the term of this Trust, all income received by the Trust, net of expenses and taxes, shall be accumulated and reinvested.
SECTION 7. Accounting by Trustee.
(a) Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions required to be made, including such specific records as shall be agreed upon in writing between Company and Trustee. Within 30 days following the close of each calendar year and within
60 days after the removal or resignation of Trustee, Trustee shall deliver to Company a written account of its administration of the Trust during such year or during the period from the close of the last preceding year to the date of such removal or
resignation, setting forth all investments, receipts, disbursements and other transactions effected by it, including a description of all securities and investments purchased and sold with the cost or net proceeds of such purchases or sales (accrued
interest paid or receivable being shown separately), and showing all cash, securities and other property held in the Trust at the end of such year or as of the date of such removal or resignation, as the case may be.
SECTION 8. Responsibility of Trustee.
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(a) Trustee shall act with the care, skill, prudence and diligence under the circumstances then prevailing
that a prudent person acting in like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims, provided, however, that Trustee shall incur no liability to any person for any action
taken pursuant to a direction, request, or approval given by Company which is contemplated by, and in conformity with, the terms of this Trust and is given in writing by Company. In the event of a dispute between Company and a party, Trustee may
apply to a court of competent jurisdiction to resolve the dispute.
(b) Trustee may consult with legal counsel (who may also be counsel for
Company generally) with respect to any of its duties or obligations hereunder.
(c) Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other professionals to assist it in performing any of its duties or obligations hereunder.
(d)
Trustee shall have, without exclusion, all powers conferred on trustees by applicable law, unless expressly provided otherwise herein, provided, however, that if an insurance policy is held as an asset of the Trust, Trustee shall have no power to
name a beneficiary of the policy other than the Trust, to assign the policy (as distinct from conversion of the policy to a different form) other than to a successor Trustee, or to loan to any person the proceeds of any borrowing against such policy
and shall act with respect to any such policy only as directed by Company.
(e) However, notwithstanding the provisions of Section 8(d)
above, Trustee may loan to Company the proceeds of any borrowing against an insurance policy held as an asset of the Trust.
(f)
Notwithstanding any powers granted to Trustee pursuant to this Trust Agreement or to applicable law, Trustee shall not have any power that could give this Trust the objective of carrying on a business and dividing the gains therefrom, within the
meaning of section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Internal Revenue Code.
(g) The
Trustee may rely without question on directions received from the Company as set forth in Schedule “C”.
SECTION 9. Compensation and
Expenses of Trustee.
Company shall pay all administrative and Trustee’s fees and expenses. If not so paid, the fees and expenses shall be
paid from the Trust. Fees payable to the Trustee shall be set forth in Schedule “B”.
SECTION 10. Resignation and Removal of
Trustee.
(a) Trustee may resign at any time by written notice to Company, which shall be effective not less than 180 days after receipt of
such notice unless Company and Trustee agree otherwise.
(b) Trustee may be removed by Company on not less than 180 days notice or upon shorter
notice accepted by Trustee.
(c) If Trustee resigns or is removed within two years after a Change of Control, as defined herein, Company shall
apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions.
(d) Upon resignation or removal of
Trustee and appointment of a successor Trustee, all assets shall subsequently be transferred to the successor Trustee. The transfer shall be completed within 60 days after receipt of notice of resignation, removal or transfer, unless Company extends
the time limit.
(e) If Trustee resigns or is removed, a successor shall be appointed, in accordance with Section 11 hereof, by the
effective date of resignation or removal under paragraphs (a) or (b) of this section. If no such appointment has been made, Trustee may apply to a court of competent jurisdiction for appointment of a successor or for instructions. All
expenses of Trustee in connection with the proceeding shall be allowed as administrative expenses of the Trust.
Section 11. Appointment
of Successor.
(a) If Trustee resigns or is removed in accordance with Section 10(a) or (b) hereof, Company may appoint any third
party, such as a bank trust department or other party that may be granted corporate trustee powers under state law, as a successor to replace Trustee upon resignation or removal. The appointment shall be effective when accepted in writing by the new
Trustee, who shall have all of the rights and powers of the former Trustee, including ownership rights in the Trust assets. The
6
former Trustee shall execute any instrument necessary or reasonably requested by Company or the successor Trustee to evidence the transfer.
(b) If Trustee resigns or is removed pursuant to the provisions of Section 10(c) hereof and a court of competent jurisdiction appoints a successor
Trustee, the appointment shall be effective when accepted in writing by the new Trustee. The new Trustee shall have all the rights and powers of the former Trustee, including ownership rights in Trust assets. The former Trustee shall execute any
instrument necessary or reasonably requested by the successor Trustee to evidence the transfer.
(c) The successor Trustee need not examine
the records and acts of any prior Trustee and may retain or dispose of existing Trust assets, subject to Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and Company shall indemnify and defend the successor Trustee from
any claims or liability resulting from any action or inaction of any prior Trustee or from any other past event, or any condition existing at the time it becomes successor Trustee.
SECTION 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written
instrument executed by Trustee and Company. Notwithstanding the foregoing, no such amendment shall conflict with the terms of the Plan or shall make the Trust revocable after it has become irrevocable in accordance with Section 1(b) hereof.
Company shall be solely responsible for determining whether an amendment conflicts with the terms of the Plan.
(b) The Trust shall not
terminate until the date on which Plan participants and their beneficiaries are no longer entitled to benefits pursuant to the terms of the Plan. Upon termination of the Trust any assets remaining in the Trust shall be returned to Company pursuant
to certification of Company to Trustee that the conditions for termination of the Trust have been met.
(c) Upon written approval of
participants or beneficiaries entitled to payment of benefits pursuant to the terms of the Plan, Company may terminate this Trust prior to the time all benefit payments under the Plan have been made. All assets in the Trust at termination shall be
returned to Company.
SECTION 13. Miscellaneous
(a) Any provision of this Trust Agreement prohibited by law shall be ineffective to the extent of any such prohibition, without invalidating the remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment, levy, execution or other legal or equitable process.
(c)
This Trust Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.
(d) For purposes of
this Trust, Change of Control shall mean a “Change in Control” or “Potential Change in Control” within the meaning of The Progressive Corporation 1995 Incentive Plan. Company shall notify Trustee promptly of any Change of Control
and Trustee shall have no responsibility to independently determine whether a Change of Control has occurred.
(e) Company shall indemnify
Trustee against, and hold Trustee harmless from, any and all loss, damage, penalty, liability, cost, expense and reasonable attorney’s fees and disbursements, that may be incurred by, imposed upon or asserted against Trustee by reason of any
claim, regulatory proceeding or litigation arising from any act done or omitted to be done by any individual or person with respect to the Plan or Trust, excepting only any and all loss, damage, penalty, liability, cost, expense and reasonable
attorney’s fees and disbursements, to the extent arising from Trustee’s negligence in performing or failing to perform any of the duties specifically allocated to the Trustee under the terms of this Agreement or from the Trustee’s
willful misconduct or bad faith. Trustee agrees to indemnify and hold Company harmless from and against any and all loss, damage, penalty, liability, cost, expense and reasonable attorney’s fees and disbursements incurred by, imposed upon or
asserted against Company by reason of any claim, regulatory proceeding or litigation to the extent arising from the Trustee’s negligence in performing or failing to perform any of the duties specifically allocated to the Trustee under the terms
of this Agreement or from the Trustee’s willful misconduct or bad faith.
SECTION 14. Transferred Assets; Administration of Transferred
Assets; Powers and Duties of Trustee
7
(a) There will, from time to time, subsequent to December 1, 2000, be delivered to the Trustee cash
proceeds (“Midland Assets”) previously held pursuant to the Midland Companies’ Amended and Restated Director and Executive Cash or Deferred Compensation Plan (“Midland Plan”). All such Midland Assets shall be held,
administered and disbursed by the Trustee as part of the Trust, pursuant to the provisions of this Agreement, as in effect from time to time subsequent to December 1, 2000.
(b) The Trustee will have no duty to verify whether the amount of any such Midland Assets delivered to it is correct, and shall have no duty of inquiry into the prior administration of the Midland Plan or
funding for the Midland Plan.
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(c)
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Such Midland Assets shall be invested in accordance with the provisions of Section 5.
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IN WITNESS WHEREOF, Company and Trustee have hereunto caused this Trust Agreement to be executed by their duly authorized representatives
as of the date set forth above.
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THE PROGRESSIVE CORPORATION
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FIDELITY MANAGEMENT TRUST COMPANY
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By:
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/s/ Stephen D. Peterson
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By:
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/s/ Carolyn Redden
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Title:
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Treasurer
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Title:
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Vice President
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Date
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: November 7, 2002
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Date:
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November 8, 2002
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8
SCHEDULE “A”
RECORDKEEPING AND ADMINISTRATIVE SERVICES
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*
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The Trustee will provide only the recordkeeping and administrative services set forth on this Schedule “A” and no others.
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Administration
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o
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Establishment and maintenance of participant account and election percentages.
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*
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Maintenance of the following money classifications:
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1995 Gainshare
1996 Gainshare
1997 Gainshare
1998 Gainshare
1999 Gainshare
Midland
Deferred to Age 43
Deferred to Age 47
Deferred to Age 51
Deferred to Age 55
Deferred to Age 59
Deferred til term
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*
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Maintenance of the following plan investment options:
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Fidelity Retirement Money Market Portfolio
Oakmark Equity & Income Fund
Vanguard Institutional Index Fund
Washington Mutual Investors Fund—Class A
Fidelity Dividend Growth Fund
Fidelity Mid-Cap Stock Fund
Wasatch Small Cap Growth Fund
Fidelity Diversified International Fund
FMA Small Company Portfolio—Institutional Class
Janus Worldwide Fund
PIMCO Total Return Fund (Admin)
The Progressive Corporation Stock Fund
Processing
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*
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Processing of mutual fund trades and employer stock.
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*
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Maintain and process changes to participants’ prospective investment mix elections.
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*
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Process exchanges between investment options on a daily basis.
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*
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Provide as requested processing of payroll contribution data via plan Sponsor Workstation.
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* Provide as requested reconciliation and processing of participant withdrawal requests as approved and directed by the Company. All withdrawal requests will be based on the current market values of the
participants’ accounts, not advances or estimated values. The “current market value” of a participant’s account shall be the account value on the business day that direction is received from the Company in good order by the
Trustee, if such direction is received before 4:00 p.m. (E.T.). If
9
direction from the Company is received by the Trustee after 4:00 p.m. (E.T.) on a business day, then the current market value of a participant’s account shall be the account value on the
next business day.
Other
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Prepare, reconcile and deliver a monthly Trial Balance Report presenting all money classes and investments. This report is based on the market value as of the last business day of the month. The report will be delivered not later than thirty
(30) days after the end of each month in the absence of unusual circumstances.
* Prepare, reconcile and deliver a Quarterly
Administrative Report presenting both on a participant and a total plan basis all money classes, investment positions and a summary of all activity of the participant and plan as of the last business day of the quarter. The report will be delivered
not later than thirty (30) days after the end of each quarter in the absence of unusual circumstances.
* Prepare and distribute, either
to the Company or to each plan participant directly, a quarterly detailed participant statement reflecting all activity for the period. Statements will be delivered not later than thirty (30) days after each quarter in the absence of unusual
circumstances.
* Provide monthly trial balance
* Prepare and mail to the participant, a confirmation of the transactions exchanges and changes to investment mix elections within five (5) business days of the participants instructions.
* Provide access to Plan Company Webstation (PSW). PSW is a graphical, Windows-based application that provides current plan and participant-level
information, including indicative data, account balances, activity and history.
* Provide Mutual Fund tax reporting (Forms 1099 Div. And
1099-B) to the Company.
* Provide necessary account information to the Company for issuance of participant checks and tax reporting.
* Prepare employee communications describing available investment options, including multimedia informational materials and group
presentations.
COMMUNICATION SERVICES.
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*
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PROVIDE EMPLOYEE COMMUNICATIONS DESCRIBING AVAILABLE INVESTMENT OPTIONS, INCLUDING MULTIMEDIA INFORMATIONAL MATERIALS AND GROUP PRESENTATIONS.
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*
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FIDELITY PORTFOLIOPLANNER (SM), AN INTERNET-BASED EDUCATIONAL SERVICE FOR PARTICIPANTS THAT GENERATES TARGET ASSET ALLOCATIONS AND RECOMMENDED MODEL PORTFOLIOS
CUSTOMIZED TO INVESTMENT OPTIONS IN THE PLAN(s) BASED UPON METHODOLOGY PROVIDED BY STRATEGIC ADVISERS, INC., AN AFFILIATE OF THE TRUSTEE. THE COMPANY ACKNOWLEDGES THAT IT HAS RECEIVED THE ADV PART II FOR STRATEGIC ADVISERS, INC. MORE THAN 48 HOURS
PRIOR TO EXECUTING THE TRUST.
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ADMINISTRATOR
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FIDELITY MANAGEMENT TRUST COMPANY
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By:
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/s/ Stephen D. Peterson
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By:
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/s/ Carolyn Redden
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Title:
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Treasurer
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Title:
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Vice President
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Date:
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November 7, 2002
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Date:
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November 8, 2002
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10
SCHEDULE “B”
FEE SCHEDULE
* ANNUAL
RECORDKEEPING FEE $10,000.00 PER YEAR BILLED AND PAYABLE ON A QUARTERLY BASIS.
o This fee will be imposed for each calendar
quarter, or any part thereof, that it remains necessary to maintain a participant’s account(s) as part of the Plan’s records, e.g., vested, deferred, forfeiture, and terminated participants who must remain on file through calendar year-end
for reporting purposes.
* NON-FIDELITY MUTUAL FUNDS NON-FIDELITY MUTUAL FUND VENDORS SHALL PAY SERVICE FEES DIRECTLY TO FIDELITY MANAGEMENT
TRUST COMPANY EQUAL TO A PERCENTAGE (GENERALLY 25 OR 35 BASIS POINTS) OF PLAN ASSETS INVESTED IN SUCH NON-FIDELITY MUTUAL FUNDS.
PLAN COMPANY WEBSTATION (PSW): TWO USER I.D.’S PROVIDED FREE OF CHARGE.
* TRUSTEE FEES
0.10% PER YEAR OF TRUST ASSETS INVESTED IN COMPANY STOCK PAYABLE PRO RATA QUARTERLY ON THE BASIS OF SUCH ASSETS AS OF THE CALENDAR QUARTER’S LAST VALUATION DATE, BUT NO LESS THAN $5,000.00 NOR MORE THAN $35,000.00 PER YEAR.
Other Fees: Separate charges for extraordinary expenses resulting from large numbers of simultaneous manual transactions, from errors not caused by
Fidelity, reports not contemplated in this Agreement, corporate actions, or the provision of communications materials in hard copy which are also accessible to participants via electronic services in the event that the provision of such material in
hard copy would result in an additional expense deemed to be material.
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ADMINISTRATOR
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FIDELITY MANAGEMENT TRUST COMPANY
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By:
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/s/ Stephen D. Peterson
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By:
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/s/ Carolyn Redden
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Title:
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Treasurer
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Title:
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Vice President
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Date:
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November 7, 2002
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Date:
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November 8, 2002
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11
SCHEDULE “C”
[Progressive Logo]
Ms. Carolyn Redden
Fidelity Investments
Institutional Operations Company
82 Devonshire Street, MM3H
Boston, Massachusetts 02109
The Progressive Corporation Executive
Deferred Compensation Plan
*** NOTE: THIS SCHEDULE SHOULD CONTAIN NAMES AND SIGNATURES FOR ALL INDIVIDUALS WHO WILL BE PROVIDING DIRECTIONS TO FIDELITY REPRESENTATIVES IN CONNECTION WITH THE PLAN.
FIDELITY REPRESENTATIVES WILL BE UNABLE TO ACCEPT DIRECTIONS FROM ANY INDIVIDUAL WHOSE NAME DOES NOT APPEAR ON THIS SCHEDULE.***
Dear Ms. Redden:
This letter is sent to you in accordance with Section 8(g) of the Trust Agreement, dated as of November 8, 2002, between [name of Company] and Fidelity Management Trust Company. [I or We] hereby
designate [name of individual], [name of individual], and [name of individual], as the individuals who may provide directions upon which Fidelity Management Trust Company shall be fully protected in relying. Only one such individual need provide any
direction. The signature of each designated individual is set forth below and certified to be such.
You may rely upon each
designation and certification set forth in this letter until [I or we] deliver to you written notice of the termination of authority of a designated individual.
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Very truly yours,
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The Progressive Corporation
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By:
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/s/ Stephen D. Peterson
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Title:
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Treasurer
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Date:
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November 7, 2002
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/s/ Diane Hanowitz
/s/ Diane Morrissey
/s/ Francesca Scafidi
12
SCHEDULE “D”
OPERATIONAL GUIDELINES FOR NON-FIDELITY MUTUAL FUNDS
Pricing
By 7:00 p.m. Eastern Time (“ET) each Business Day, the Non-Fidelity Mutual Fund
Vendor (Fund Vendor) will input the following information (“Price Information”) into the Fidelity Participant Recordkeeping System (“FPRS”) via the remote access price screen that Fidelity Investment Institutional Operations
Company, Inc. (“FIIOC”), an affiliate of the Trustee, has provided to the Fund Vendor: (1) the net asset value for each Fund at the Close of Trading, (2) the change in each Fund’s net asset value from the Close of Trading on
the prior Business Day, and (3) in the case of an income fund or funds, the daily accrual for interest rate factor (“mil rate”). FIIOC must receive Price Information each Business Day (a “Business Day” is any day the New
York Stock Exchange is open). If on any Business Day the Fund Vendor does not provide such Price Information to FIIOC, FIIOC shall pend all associated transaction activity in the Fidelity Participant Recordkeeping System (“FPRS”) until the
relevant Price Information is made available by Fund Vendor.
Trade Activity and Wire Transfers
By 7:00 a.m. ET each Business Day following Trade Date (“Trade Date Plus One”), FIIOC will provide, via facsimile, to the Fund Vendor a
consolidated report of net purchase or net redemption activity that occurred in each of the Funds up to 4:00 p.m. ET on the prior Business Day. The report will reflect the dollar amount of assets and shares to be invested or withdrawn for each Fund.
FIIOC will transmit this report to the Fund Vendor each Business Day, regardless of processing activity. In the event that data contained in the 7:00 a.m. ET facsimile transmission represents estimated trade activity, FIIOC shall provide a final
facsimile to the Fund Vendor by no later than 9:00 a.m. ET. Any resulting adjustments shall be processed by the Fund Vendor at the net asset value for the prior Business Day.
The Fund Vendor shall send via regular mail to FIIOC transaction confirms for all daily activity in each of the Funds. The Fund Vendor shall also send via regular mail to FIIOC, but no later than the
fifth Business Day following calendar month close, a monthly statement for each Fund. FIIOC agrees to notify the Fund Vendor of any balance discrepancies within twenty (20) Business Days of receipt of the monthly statement.
For purposes of wire transfers, FIIOC shall transmit a daily wire for aggregate purchase activity and the Fund Vendor shall transmit a daily wire for
aggregate redemption activity, in each case including all activity across all Funds occurring on the same day.
Prospectus Delivery
FIIOC shall be responsible for the timely delivery of Fund prospectuses and periodic Fund reports (“Required Materials”) to Plan
participants, and shall retain the services of a third-party vendor to handle such mailings. The Fund Vendor shall be responsible for all materials and production costs, and hereby agrees to provide the Required Materials to the third-party vendor
selected by FIIOC. The Fund Vendor shall bear the costs of mailing annual Fund reports to Plan participants. FIIOC shall bear the costs of mailing prospectuses to Plan participants.
Proxies
The Fund Vendor shall be responsible for all costs associated with the production of
proxy materials. FIIOC shall retain the services of a third-party vendor to handle proxy solicitation mailings and vote tabulation. Expenses associated with such services shall be billed directly to the Fund Vendor by the third-party vendor.
Participant Communications
The
Fund Vendor shall provide internally prepared fund descriptive information approved by the Funds’ legal counsel for use by FIIOC in its written participant communication materials. FIIOC shall utilize historical performance data obtained from
third-party vendors (currently Morningstar, Inc., FACTSET Research Systems and Lipper Analytical Services) in telephone conversations with plan participants and in quarterly participant statements, which shall be electronic except for year-end paper
reports. The Company hereby consents to FIIOC’s use of such materials and acknowledges that FIIOC is not responsible for the accuracy of third-party information. FIIOC shall seek the approval of the Fund Vendor prior to retaining any other
third-party vendor to render such data or materials under this Agreement.
13
Compensation
FIIOC shall be entitled to fees as set forth in a separate agreement with the Fund Vendor.
Indemnification
The Fund Vendor shall be
responsible for compensating participants and/or FIIOC in the event that losses occur as a result of (1) the Fund Vendor’s failure to provide FIIOC with Price Information or (2) providing FIIOC with incorrect Price Information.
14
SCHEDULE “E”
EXCHANGE GUIDELINES
The
following exchange guidelines are currently employed by Fidelity Investments Institutional Operations Company, Inc. (FIIOC).
Exchange hours,
via a Fidelity Participant service representative, are 8:30 a.m. (ET) to 8:00 p.m. in the Participant’s time zone in the continental United States on each business day. A “business day” is any day on which the New York Stock Exchange
(NYSE) is open.
Exchanges via the internet (Netbenefits) may be made virtually 24 hours a day.
Exchanges via Voice Response System (“VRS”) may be made virtually 24 hours a day.
FIIOC reserves the right to change these exchange guidelines at its discretion.
Note: The
NYSE’s normal closing time is 4:00 p.m. (ET); in the event the NYSE alters its closing time, all references below to 4:00 p.m. (ET) shall mean the NYSE closing time as altered.
MUTUAL FUNDS
EXCHANGES BETWEEN MUTUAL FUNDS
In accordance with this Agreement, the Sponsor may direct that Participants contact Fidelity on any day to exchange between mutual funds. If the request
is confirmed before the close of the market (generally, 4:00 p.m. ET) on a business day, it will receive that day’s trade date. Requests confirmed after the close of the market on a business day (or on any day other than a business day) will be
processed on a next day basis.
Participants who wish to exchange out of a mutual fund into another mutual fund may call two times each
quarter.
SPONSOR STOCK
I. EXCHANGES FROM MUTUAL FUNDS INTO SPONSOR STOCK
Sponsor Stock exchanges are
processed on a weekly cycle—Monday through Thursday. On the day the window closes or next valid trade date, the mutual fund is sold. The day after the window closes or next valid trade date, the stock is purchased. The stock purchase is seen in
the account two days after the close of the window (day after trade date). The purchase of the stock is settled currently (trade date + 3 days).
Participants who wish to exchange out of a mutual fund into Sponsor Stock may call two times each quarter.
II. EXCHANGES FROM SPONSOR STOCK INTO MUTUAL FUNDS
Sponsor Stock exchanges are
processed on a weekly cycle—Monday through Thursday. On the day after the close of the window or next valid trade date, the stock is sold. During the settlement period (three days), the balance is reduced by the amount of the trade. After the
proceeds of the stock are available (trade date plus three days), the “in” side of the exchange (mutual funds, in this case) is purchased currently.
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The Progressive Corporation
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Fidelity Management Trust Company
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By:
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/s/ Stephen D. Peterson
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By:
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/s/ Carolyn Redden
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Title:
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Treasurer
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Title:
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Vice President
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Date
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: November 7, 2002
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Date:
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November 8, 2002
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15
[Progressive Logo]
John M. Kimpel, Esq.
Vice President and Pension Counsel
Fidelity Investments
82 Devonshire Street, F7A
Boston, MA 02109
RE: INVESTMENT INSTRUCTIONS FOR RABBI TRUST ASSETS
Dear Mr. Kimpel:
The participants under The Progressive Corporation
Executive Deferred Compensation Plan (“Plan”) have the right to direct the investment of their Plan account in hypothetical investment options, which are currently based on a number of registered investment companies advised by Fidelity
Management & Research Company (“Fidelity Mutual Funds”) and certain investment companies not advised by Fidelity Management & Research Company (“Non-Fidelity Mutual Funds”) and Sponsor Stock. Fidelity Management
Trust Company has agreed pursuant to a Trust Agreement with The Progressive Corporation dated November 8, 2002 to receive such participant directions.
The Company hereby directs the Trustee to invest funds contributed to the rabbi trust in a manner which corresponds directly to elections made by participants under the plan.
This procedure will remain in effect until a revised instruction letter is provided by the Company and accepted by the Trustee.
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Sincerely,
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The Progressive Corporation
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By:
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/s/ Stephen D. Peterson
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Title:
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Treasurer
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Date:
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November 7, 2002
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16
Exhibit 4.24
FIRST AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
THE PROGRESSIVE CORPORATION
THIS FIRST AMENDMENT, dated as of the first day of June, 2004, and effective as otherwise set forth herein, by and between Fidelity Management Trust Company (the “Trustee”) and The Progressive
Corporation (“Company”);
WITNESSETH:
WHEREAS, the Trustee and Company heretofore entered into a Trust Agreement dated November 8, 2002, with regard to The Progressive Corporation Executive Deferred Compensation Trust (the
“Plan”); and
WHEREAS, Company has informed the Trustee that effective close of business April 22, 2004, the
assets of the Janus Worldwide Fund are frozen to new contributions and exchanges in; and
WHEREAS, Company hereby directs the
Trustee, in accordance with Section 8(g), effective close of business May 28, 2004, to liquidate all participant balances held in the Janus Worldwide Fund at its net asset value on such day, and to invest the proceeds in the Templeton
World Fund—Class A at its net asset value on such day. The parties hereto agree that the Trustee shall have no discretionary authority with respect to this sale and transfer directed by Company. Any variation from the procedure described herein
may be instituted only at the express written direction of Company; and
WHEREAS, the Trustee and Company now desire to amend
said Trust Agreement as provided for in Section 12 thereof;
NOW THEREFORE, in consideration of the above premises, the
Trustee and Company hereby amend the Trust Agreement by:
(1) Adding a new Section 13, Electronic Services, as follows,
and renumbering all subsequent subsections accordingly:
Section 13. Electronic Services.
(a) The Trustee may provide Electronic Services and/or Electronic Products, including, but not limited to Fidelity Plan Sponsor
WebStation. Company and its agents agree to use such Electronic Services and Electronic Products only in the course of reasonable administration of or participation in the Plan and to keep confidential and not publish, copy, broadcast, retransmit,
reproduce, commercially exploit or otherwise redisseminate the Electronic Products or Electronic Services or any portion thereof without the Trustee’s written consent, except, in cases where Trustee has specifically notified Company that the
Electronic Products or Services are suitable for delivery to Company’s Participants, for non-commercial personal use by Participants or beneficiaries with respect to their participation in the Plan or for their other retirement planning
purposes.
(b) Company shall be responsible for installing and maintaining all Electronic Products, (including any programming
required to accomplish the installation) and for displaying any and all content associated with Electronic Services on its computer network and/or intranet so that such content will appear exactly as it appears when delivered to Company. All
Electronic Products and Services shall be clearly identified as originating from the Trustee or its affiliate. Company shall promptly remove Electronic Products or Services from its computer network and/or intranet, or replace the Electronic
Products or Services with updated products or services provided by the Trustee, upon written notification (including written notification via facsimile) by the Trustee.
(c) All Electronic Products shall be provided to Company without any express or implied legal warranties or acceptance of legal liability by the Trustee, and all Electronic Services shall be provided to
Company without acceptance of legal liability related to or arising out of the electronic nature of the delivery or provision of such Services. Except as otherwise stated in this Agreement, no rights are conveyed to any property, intellectual or
tangible, associated with the
contents of the Electronic Products or Services and related material. The Trustee hereby grants to Company a non-exclusive, non-transferable revocable right and license to use the Electronic
Products and Services in accordance with the terms and conditions of this Agreement.
(d) To the extent that any Electronic
Products or Services utilize internet services to transport data or communications, the Trustee will take, and Company agrees to follow, reasonable security precautions, however, the Trustee disclaims any liability for interception of any such data
or communications. The Trustee reserves the right not to accept data or communications transmitted via electronic media by Company or a third party if it determines that the media does not provide adequate data security, or if it is not
administratively feasible for the Trustee to use the data security provided. The Trustee shall not be responsible for, and makes no warranties regarding access, speed or availability of internet or network services, or any other service required for
electronic communication. The Trustee shall not be responsible for any loss or damage related to or resulting from any changes or modifications to the Electronic Products or Services after delivering it to Company.
(2) Effective close of business April 22, 2004, amending the “investment options” section of Schedule “A” to
delete the reference to the “Janus Worldwide Fund” and replace it with “Janus Worldwide Fund (frozen to new contributions and exchanges in).”
(3) Effective close of business May 28, 2004, amending the “investment options” section of Schedule “A” to delete the following:
|
|
•
|
|
Janus Worldwide Fund (frozen to new contributions and exchanges in)
|
(4) Effective close of business May 28, 2004, amending the “investment options” section of Schedule “A” to add
the following:
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•
|
|
Templeton World Fund—Class A
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•
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|
American AAdvantage Small Cap Value Fund—Plan Ahead Class
|
(5) Restating, in its entirety, the “Non-Fidelity Mutual Funds” section of Schedule “B” as follows:
Non-Fidelity Mutual Funds: Fees paid directly to Fidelity Investments Institutional Operations Company, Inc. (FIIOC) or its affiliates by
Non-Fidelity Mutual Fund vendors shall be posted and updated quarterly on Plan Sponsor Webstation at http://psw.fidelity.com or a successor site.
(6) Restating, in its entirety, the “Other Fees” section of Schedule “B” as follows:
Other Fees: separate charges may apply for extraordinary expenses resulting from large numbers of simultaneous manual transactions, from errors not caused by Fidelity, reports not contemplated in this
Agreement, corporate actions, or the provision of communications materials in hard copy which are also accessible to participants via electronic services in the event that the provision of such material in hard copy would result in an additional
expense deemed to be material.
IN WITNESS WHEREOF, the Trustee and Company have caused this First Amendment to be executed by
their duly authorized officers effective as of the day and year first above written.
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THE PROGRESSIVE CORPORATION
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FIDELITY MANAGEMENT TRUST COMPANY
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By:
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/s/ Charles E. Jarrett
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6/16/04
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By:
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/s/ Rebecca Hays Ethier
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7/19/04
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Date
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FMTC Authorized Signatory
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Date
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Exhibit 4.25
SECOND AMENDMENT TO THE PROGRESSIVE CORPORATION
EXECUTIVE DEFERRED
COMPENSATION TRUST
(November 8, 2002, Amendment and Restatement)
THIS SECOND AMENDMENT, dated and effective as of the first day of May, 2007, except as otherwise set forth herein, by and between
Fidelity Management Trust Company (the “Trustee”) and The Progressive Corporation (“Company”);
WITNESSETH:
WHEREAS, the Trustee and Company heretofore entered into a Trust Agreement dated November 8, 2002, with regard to The
Progressive Corporation Executive Deferred Compensation Trust (the “Trust”); and
WHEREAS,
Company has informed the Trustee that
effective the close of business on May 1, 2007,
the assets of the American
Funds
®
Washington Mutual Investors Fund
sm
– Class A shall be frozen to new contributions and exchanges in; and
WHEREAS, Company now desires, and hereby directs the Trustee, in accordance with Section 5 and Subsection 8(g)
of the Trust Agreement,
effective the close of business on May 1, 2007
, to redirect all participant contributions originally directed to the American Funds
®
Washington Mutual Investors Fund
sm
– Class A to the Vanguard Value Index Fund – Institutional Class. The parties hereto agree that the Trustee shall have no discretionary authority with respect to this
redirection directed by Company. Any variation from the procedure described herein may be instituted only at the express written direction of Company; and
WHEREAS, Company hereby directs the Trustee, in accordance with Section 5 and Subsection 8(g) of the Trust Agreement,
effective the close of business on May 31, 2007
, to liquidate all
participant balances held in the American Funds
®
Washington Mutual Investors Fund
sm
– Class A at its net asset value on such day, and to
invest the proceeds in the Vanguard Value Index Fund – Institutional Class at its net asset value on such day. The parties hereto agree that the Trustee shall have no discretionary authority with respect to this sale and transfer directed by
Company. Any variation from the procedure described herein may be instituted only at the express written direction of Company; and
WHEREAS, the Trustee and Company now desire to amend said Trust Agreement as provided for in Section 12 thereof;
NOW THEREFORE, in consideration of the above premises, the Trustee and Company hereby amend the Trust Agreement by:
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(1)
|
Effective the close of business on May 1, 2007
, amending the “investment options” section of Schedule “A” to delete the
reference to “Washington Mutual Investors Fund – Class A” and replace it with “American
Funds
®
Washington Mutual Investors Fund
sm
– Class A (frozen to new contributions and exchanges in).”
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(2)
|
Effective the close of business on May 1, 2007
, amending the “investment options” section of Schedule “A” to add the following:
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•
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Vanguard Value Index Fund—Institutional Class
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•
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Vanguard Growth Index Fund—Institutional Class
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•
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Vanguard Mid-Cap Index Fund—Institutional Class
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•
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Vanguard Total International Stock Index Fund – Investor Class
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•
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Vanguard Small-Cap Index Fund – Institutional Class
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(3)
|
Effective the close of business on May 31, 2007,
amending the “investment options” section of Schedule “A” to delete the following:
|
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|
•
|
|
American
Funds
®
Washington Mutual Investors Fund
sm
– Class A (frozen to new contributions and exchanges in)
|
IN WITNESS WHEREOF, the Trustee and Company have caused this Second Amendment to be executed by their duly authorized officers. By signing
below, the undersigned represent that they are authorized to execute this document on behalf of the respective parties. Notwithstanding any contradictory provision of the Trust Agreement that this document amends, each party may rely without duty of
inquiry on the foregoing representation.
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THE PROGRESSIVE CORPORATION
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FIDELITY MANAGEMENT TRUST COMPANY
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By:
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/s/Charles E.
Jarrett
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4/27/07
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By:
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/s/Stephanie Nick
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5/9/07
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Authorized Signatory
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Date
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Authorized Signatory
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Date
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Exhibit 4.26
THIRD AMENDMENT TO THE PROGRESSIVE CORPORATION
EXECUTIVE DEFERRED
COMPENSATION TRUST
(November 8, 2002, Amendment and Restatement)
THIS THIRD AMENDMENT, dated and effective as of the second day of January, 2008, except as otherwise set forth herein, by and between
Fidelity Management Trust Company (the “Trustee”) and The Progressive Corporation (“Company”);
WITNESSETH:
WHEREAS, the Trustee and Company heretofore entered into a Trust Agreement dated November 8, 2002, with regard to The
Progressive Corporation Executive Deferred Compensation Trust (the “Trust”); and
WHEREAS, the Trustee and Company
now desire to amend said Trust Agreement as provided for in Section 12 thereof;
NOW THEREFORE, in consideration of the
above premises, the Trustee and Company hereby amend the Trust Agreement by:
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1.
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Restating the “Annual Recordkeeping Fee” section of Schedule “B”, in its entirety, as follows:
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Annual Recordkeeping Fee
$0.
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2.
|
Amending the Schedule “B” to delete the following:
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*Trustee Fees
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0.10% per year of Trust assets invested in Company Stock payable pro rata quarterly on the basis of such assets as of the calendar quarter’s last valuation date, but no
less than $5,000.00 nor more than $35,000.00 per year.
|
IN WITNESS WHEREOF, the Trustee and Company have caused this Third Amendment to be executed by their duly
authorized officers. By signing below, the undersigned represent that they are authorized to execute this document on behalf of the respective parties. Notwithstanding any contradictory provision of the Trust Agreement that this document amends,
each party may rely without duty of inquiry on the foregoing representation.
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THE PROGRESSIVE CORPORATION
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FIDELITY MANAGEMENT TRUST COMPANY
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By:
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By:
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Its authorized signatory
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Its authorized signatory
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Name:
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Name:
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Title:
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Title:
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Date:
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Date:
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Exhibit 4.27
FOURTH AMENDMENT TO THE PROGRESSIVE CORPORATION
EXECUTIVE DEFERRED
COMPENSATION TRUST
(November 8, 2002, Amendment and Restatement)
THIS FOURTH AMENDMENT, dated and effective as of the nineteenth day of May, 2008, except as otherwise set forth herein, by and between
Fidelity Management Trust Company (the “Trustee”) and The Progressive Corporation (“Company”);
WITNESSETH:
WHEREAS, the Trustee and Company heretofore entered into a Trust Agreement dated November 8, 2002, with regard to The
Progressive Corporation Executive Deferred Compensation Trust (the “Trust”); and
WHEREAS, the Company has informed
the Trustee that
effective after the close of business on May 19, 2008
, the assets of the Fidelity Dividend Growth Fund shall be frozen to new contributions and exchanges in; and
WHEREAS, the Company now desires, and hereby directs the Trustee, in accordance with Section 5 and Subsection 8(g) of the Trust
Agreement,
effective after the close of business on May 19, 2008,
to redirect all participant contributions directed to the Fidelity Dividend Growth Fund to be invested in the Vanguard Institutional Index Fund (a/k/a Vanguard
Institutional Index Fund – Institutional Shares). The parties hereto agree that the Trustee shall have no discretionary authority with respect to this redirection directed by the Company. Any variation from the procedure described herein may be
instituted only at the express written direction of the Company; and
WHEREAS, the Company hereby directs the Trustee, in
accordance with Section 5 and Subsection 8(g) of the Trust Agreement,
effective after the close of business on August 19, 2008
, to liquidate all participant balances held in the Fidelity Dividend Growth Fund at its net asset value
on such day, and to invest the proceeds in the Vanguard Institutional Index Fund (a/k/a Vanguard Institutional Index Fund – Institutional Shares) at its net asset value on such day. The parties hereto agree that the Trustee shall have no
discretionary authority with respect to this sale and transfer directed by the Company. Any variation from the procedure described herein may be instituted only at the express written direction of the Company; and
WHEREAS, the Trustee and Company now desire to amend said Trust Agreement as provided for in Section 12 thereof;
NOW THEREFORE, in consideration of the above premises, the Trustee and Company hereby amend the Trust Agreement by:
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(1)
|
Effective after the close of business on May 19, 2008,
amending the “investment options” section of Schedule “A” to delete the reference
to the “Fidelity Dividend Growth Fund” and replace it with “Fidelity Dividend Growth Fund (frozen to new contributions and exchanges in)”.
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(2)
|
Effective after the close of business on August, 19, 2008,
amending the “investment options” section of Schedule “A” to delete the following:
|
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|
•
|
|
Fidelity Dividend Growth Fund (frozen to new contributions and exchanges in)
|
IN WITNESS WHEREOF, the Trustee and Company have caused this Fourth Amendment to be executed
by their duly authorized officers. By signing below, the undersigned represent that they are authorized to execute this document on behalf of the respective parties. Notwithstanding any contradictory provision of the Trust Agreement that this
document amends, each party may rely without duty of inquiry on the foregoing representation.
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THE PROGRESSIVE CORPORATION
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|
FIDELITY MANAGEMENT TRUSTCOMPANY
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By:
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/s/ Charles E. Jarrett _
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By:
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/s/ Carolyn Redden
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Its authorized signatory
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Its authorized signatory
|
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Name:
|
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Charles E. Jarrett
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Name:
|
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Carolyn Redden
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Title:
|
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Secretary
|
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|
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Title:
|
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Contracts SVP
|
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Date:
|
|
May 15, 2008
|
|
|
|
Date:
|
|
June 20, 2008
|
2
Exhibit 4.28
FIFTH AMENDMENT TO THE PROGRESSIVE CORPORATION
EXECUTIVE DEFERRED
COMPENSTATION TRUST
(November 8, 2002 Amendment and Restatement)
THIS FIFTH AMENDMENT
, dated as of the twenty-third day of January, 2009, by and between Fidelity Management Trust Company (the
“Trustee”) and The Progressive Corporation (“Company”);
WITNESSETH:
WHEREAS
, the Trustee and the Company heretofore entered into a Trust Agreement dated November 8, 2002, with regard to The
Progressive Corporation Executive Deferred Compensation Trust (the “Trust”); and
WHEREAS
, the Company has
informed the Trustee that
effective as of the close of business on January 23, 2009
, the assets of the Fidelity Diversified International Fund, Fidelity Mid-Cap Stock Fund, FMA Small Company Portfolio-Investor Shares, PIMCO Total Return
Fund-Administrative Class, and Templeton World Fund-Class A are frozen to new contributions and exchanges in; and
WHEREAS
, the Company hereby directs the Trustee, in accordance with Section 5 and Subsection 8(g) of the Trust Agreement, as
follows: (i)
on January 23, 2009
, to liquidate all participant balances held in the Fidelity Diversified International Fund at its net asset value on such day, and to invest the proceeds in the Fidelity Diversified International
Fund—Class K at its net asset value on such day; (ii) to redirect all participant contributions directed to the Fidelity Diversified International Fund after
January 23, 2009
to be invested in the Fidelity Diversified
International Fund—Class K; and (iii) to permit no further investments in the Fidelity Diversified International Fund as an investment option for the Plan after
January 23, 2009
. The parties hereto agree that the Trustee shall
have no discretionary authority with respect to this sale and transfer directed by the Company. Any variation from the procedure described herein may be instituted only at the express written direction of the Company; and
WHEREAS
, the Company hereby directs the Trustee, in accordance with Section 5 and Subsection 8(g) of the Trust Agreement, as
follows: (i)
on January 23, 2009
, to liquidate all participant balances held in the Fidelity Mid-Cap Stock Fund at its net asset value on such day, and to invest the proceeds in the Fidelity Mid-Cap Stock Fund—Class K at its
net asset value on such day; (ii) to redirect all participant contributions directed to the Fidelity Mid-Cap Stock Fund after
January 23, 2009
to be invested in the Fidelity Mid-Cap Stock Fund—Class K; and (iii) to permit
no further investments in the Fidelity Mid-Cap Stock Fund as an investment option for the Plan after
January 23, 2009
. The parties hereto agree that the Trustee shall have no discretionary authority with respect to this sale and transfer
directed by the Company. Any variation from the procedure described herein may be instituted only at the express written direction of the Company; and
WHEREAS
, the Company hereby directs the Trustee, in accordance with Section 5 and Subsection 8(g) of the Trust Agreement, as follows: (i)
on January 23, 2009
, to liquidate all
participant balances held in the PIMCO Total Return Fund—Administrative Class at its net asset value on such day, and to invest the proceeds in the PIMCO Total Return Fund—Institutional Class at its net asset value on such day;
(ii) to redirect all participant contributions directed to the PIMCO Total Return Fund—Administrative Class after
January 23, 2009
to be invested in the PIMCO Total Return Fund—Institutional Class; and (iii) to permit
no further investments in the PIMCO Total Return Fund—Administrative Class as an investment option for the Plan after
January 23, 2009
. The parties hereto agree that the Trustee shall have no discretionary authority with respect to
this sale and transfer directed by the Company. Any variation from the procedure described herein may be instituted only at the express written direction of the Company; and
WHEREAS
, the Trustee and the Company now desire to amend said Trust Agreement as provided for in Section 12 thereof;
NOW THEREFORE
, in consideration of the above premises, the Trustee and the Company hereby amend the Trust Agreement by:
(1) Amending the “investment options” section of Schedule “A” to add the following:
|
|
•
|
Fidelity Diversified International Fund – Class K
|
|
|
•
|
Fidelity Low-Priced Stock Fund – Class K
|
|
|
•
|
Fidelity Mid-Cap Stock Fund – Class K
|
|
|
•
|
PIMCO Total Return Fund – Institutional Class
|
|
|
•
|
Vanguard Total Bond Market Index Fund – Institutional Shares
|
The Company hereby acknowledges that the Named Fiduciary has received from the Trustee via regular mail a paper copy of the prospectus for each Fidelity Class K Mutual Fund selected by the Named Fiduciary
as a Plan investment option. The Named Fiduciary understands that the Fidelity Class K Mutual Fund prospectus(es) are not available at this time online at
www.fidelity.com
.
|
|
(2)
|
Amending the “investment options” section of Schedule “A” to delete the reference to the “FMA Small Company Portfolio – Investor
Shares” and replace it with “FMA Small Company Portfolio – Investor Shares (frozen to new contributions and exchanges in)”.
|
|
|
(3)
|
Amending the “investment options” section of Schedule “A” to delete the reference to the “Templeton World Fund – Class A” and replace
it with “Templeton World Fund – Class A (frozen to new contributions and exchanges in)”.
|
|
|
(4)
|
Amending the
Other
section of Schedule “A” to add the following at the end:
|
|
|
*
|
Participants may access a prospectus at
http://www.401(k).com
for any Mutual Fund available to the Plan.
|
|
|
(5)
|
Effective after the close of business on January 23, 2009
, amending the “investment options” section of Schedule “A” to delete the
following:
|
|
|
•
|
Fidelity Diversified International Fund
|
|
|
•
|
Fidelity Mid-Cap Stock Fund
|
|
|
•
|
PIMCO Total Return Fund – Administrative Class
|
IN WITNESS WHEREOF
, the Trustee and the Company have caused this Fifth Amendment to be executed by their duly authorized officers effective as of the day and year first above written. By signing
below, the undersigned represent that they are authorized to execute this document on behalf of the respective parties. Notwithstanding any contradictory provision of the agreement that this document amends, each party may rely without duty of
inquiry on the foregoing representation.
|
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|
|
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|
|
THE PROGRESSIVE CORPORATION
|
|
|
|
FIDELITY MANAGEMENT TRUST COMPANY
|
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|
|
|
|
|
|
By:
|
|
/s/ Charles E. Jarrett
|
|
|
|
By
|
|
: /s/ Stephanie Nick
|
|
|
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|
|
|
|
|
|
Its Authorized Signatory
|
|
|
|
Its Authorized Signatory
|
2
Exhibit 4.29
SIXTH AMENDMENT TO THE PROGRESSIVE CORPORATION
EXECUTIVE DEFERRED
COMPENSATION TRUST
(November 8, 2002 Amendment and Restatement)
THIS SIXTH AMENDMENT,
dated as of the seventeenth day of November, 2009, by and between Fidelity Management Trust Company (the
“Trustee”) and The Progressive Corporation (the “Company”);
WITNESSETH:
WHEREAS
, the Trustee and the Company heretofore entered into a Trust Agreement dated November 8, 2002, with regard to The
Progressive Corporation Executive Deferred Compensation Trust (the “Trust”); and
WHEREAS
, the Company hereby
directs the Trustee, in accordance with Section 5 and 8(g) of the Trust Agreement,
effective after the close of business on November 17, 2009
, as follows: (i) to liquidate all participant balances held in the American Beacon
Small Cap Value Fund – Investor Class at its net asset value on such day, and to invest the proceeds in the American Beacon Small Cap Value Fund – Institutional Class at its net asset value on such day; (ii) to redirect all
participant contributions directed to the American Beacon Small Cap Value Fund – Investor Class to be invested in the American Beacon Small Cap Value Fund – Institutional Class; and (iii) to permit no further investments in the
American Beacon Small Cap Value Fund – Investor Class as an investment option for the Plan. The parties hereto agree that the Trustee shall have no discretionary authority with respect to this sale and transfer directed by the Company. Any
variation from the procedure described herein may be instituted only at the express written direction of the Company; and
WHEREAS
, the Trustee and the Company now desire to amend said Trust Agreement as provided for in Section 12 thereof;
NOW THEREFORE
, in consideration of the above premises, the Trustee and the Company hereby amend the Trust Agreement
by:
|
|
(1)
|
Effective November 17, 2009
, amending the “investment options” section of Schedule “A” to add the following:
|
|
|
•
|
American Beacon Small Cap Value Fund – Institutional Class
|
|
|
(2)
|
Effective after the close of business on November 17, 2009
, amending the “investment options” section of Schedule “A” to delete the
following:
|
|
|
•
|
American Beacon Small Cap Value Fund – Investor Class
|
IN WITNESS WHEREOF
, the Trustee and the Company have caused this Sixth Amendment to be executed by their duly authorized officers effective as of the day and year first above written. By signing
below, the undersigned represent that they are authorized to execute this document on behalf of the respective parties. Notwithstanding any contradictory provision of the agreement that this document amends, each party may rely without duty of
inquiry on the foregoing representation.
|
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|
|
|
|
|
|
|
|
|
THE PROGRESSIVE CORPORATION
|
|
FIDELITY MANAGEMENT TRUST COMPANY
|
|
|
|
|
|
|
|
By:
|
|
/s/ Chareles E. Jarrett
|
|
By:
|
|
/s/ Carolyn Redden
|
|
12/18/09
|
|
|
|
Its Authorized Signatory
|
|
|
|
FMTC Authorized Signatory
|
|
Date
|
Exhibit 4.30
SEVENTH AMENDMENT TO THE PROGESSIVE CORPORATION
EXECUTIVE DEFERRED
COMPENSATION TRUST
(November 8, 2002 Amendment and Restatement)
THIS SEVENTH AMENDMENT
, dated and effective as of the thirteenth day of June, 2011, unless otherwise specified herein, by and
between Fidelity Management Trust Company (the “Trustee”) and The Progressive Corporation (the “Company”);
WITNESSETH:
WHEREAS
, the Trustee and the Company heretofore entered into a Trust Agreement dated November 8, 2002, with regard to The Progressive Corporation Executive Deferred Compensation Trust (the
“Trust”); and
WHEREAS
, the Sponsor hereby directs the Trustee, in accordance with Section 5 and 8(g) of
the Trust Agreement, as follows: (i) at the close of business (4:00 p.m. ET) (“Market Close”) on June 14, 2011, to liquidate all participant balances held in the Vanguard Total International Stock Index Fund Investor Shares at
its net asset value on such day, and to invest the proceeds in the Vanguard Total International Stock Index Fund Institutional Shares at its net asset value on such day; (ii) to redirect all participant contributions directed to the Vanguard
Total International Stock Index Fund Investor Shares after the Market Close on June 14, 2011 to be invested in the Vanguard Total International Stock Index Fund Institutional Shares; and (iii) to permit no further investments in the
Vanguard Total International Stock Index Fund Investor Shares as an investment option for the Plan after the Market Close on June 14, 2011. The parties hereto agree that the Trustee shall have no discretionary authority with respect to this
sale and transfer directed by the Sponsor. Any variation from the procedure described herein may be instituted only at the express written direction of the Sponsor; and
WHEREAS, the Trustee and the Company now desire to amend said Trust Agreement as provided for in Section 12 thereof;
NOW THEREFORE, in consideration of the above premises, the Trustee and the Company hereby amend the Trust Agreement by:
|
|
(1)
|
Effective at Market Close on June 13, 2011, amending the “investment options” section of Schedule “A” to add the following:
|
|
|
•
|
Vanguard Total International Stock Index Fund Institutional Shares
|
|
|
(2)
|
Effective at Market Close on June 14, 2011, amending the “investment options” section of Schedule “A” to delete the following:
|
|
|
•
|
Vanguard Total International Stock Index Fund Investor Shares
|
IN WITNESS WHEREOF
, the Trustee and the Company have caused this Seventh Amendment to
be executed by their duly authorized officers effective as of the day and year first above written. By signing below, the undersigned represent that they are authorized to execute this document on behalf of the respective parties. Notwithstanding
any contradictory provision of the agreement that this document amends, each party may rely without duty of inquiry on the foregoing representation.
|
|
|
|
|
|
|
|
|
|
|
|
|
THE PROGRESSIVE CORPORATION
|
|
|
|
FIDELITY MANAGEMENT TRUST COMPANY
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
Its Authorized Signatory
|
|
Date
|
|
|
|
Its Authorized Signatory
|
|
Date
|
-2-
Exhibit 5.1
|
|
|
|
|
|
|
|
|
|
|
PNC Center
1900 East 9th Street, Suite 3200
Cleveland, OH 44114-3482
T
216.621.0200
F 216.696.0740
www.bakerlaw.com
|
December 27, 2012
The Progressive Corporation
6300 Wilson Mills Road
Mayfield Village, Ohio 44143
Ladies and
Gentlemen:
We have acted as counsel to The Progressive Corporation, an Ohio corporation (the “Company”), in
connection with its Registration Statement on Form S-8 (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the offering of
up to 7,500,000 Common Shares, $1.00 par value (the “Common Shares”), of the Company pursuant to The Progressive Corporation Executive Deferred Compensation Plan (the “Plan”).
In connection with the foregoing, we have examined (a) the Amended Articles of Incorporation, as amended, and the Code of
Regulations of the Company, (b) the Plan, and (c) such records of the corporate proceedings of the Company and such other documents as we deem necessary to render this opinion.
In our examination, we have assumed, but have not independently verified, the genuineness of all signatures, the conformity to original
documents of all documents submitted to us as certified, facsimile or other copies, and the authenticity of all such documents. As to questions of fact material to this opinion, we have relied on certificates or comparable documents of public
officials and of officers and representatives of the Company.
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that:
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1.
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The Company is a corporation duly organized and validly existing under the laws of the State of Ohio.
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2.
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All necessary corporate proceedings have been taken to authorize the issuance of the shares of Common Shares being registered under the Registration Statement, and all
such shares of Common Shares, when issued and delivered pursuant to the Plan, and when the Registration Statement shall have become effective, will be legally issued, fully paid and non-assessable.
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The opinions expressed herein are limited to the General Corporation Law of the State of Ohio and the Federal laws of the United States
of America and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of the Commission.
Very
truly yours,
/s/ Baker & Hostetler LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our report dated February 28, 2012 relating to the financial statements, financial statement schedules and the effectiveness of internal control over financial reporting,
which appears in The Progressive Corporation’s Annual Report on Form 10-K for the year ended December 31, 2011.
PricewaterhouseCoopers LLP
Cleveland, Ohio
December 27, 2012
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by
reference in this Registration Statement on Form S8, pertaining to The Progressive Corporation Executive Deferred Compensation Plan of our report dated March 28, 2012, with respect to the financial statements of The Progressive Corporation Executive
Deferred Compensation Plan included in the Annual Report (Form 11-K) as of December 31, 2011 and 2010 for the three years ended December 31, 2011.
/s/ Meaden & Moore, Ltd.
Cleveland, Ohio
December 27, 2012
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The
undersigned officer of The Progressive Corporation, an Ohio corporation (the “Company”), has made, constituted and appointed, and by this instrument does make, constitute and appoint, Brian C. Domeck, Jeffrey W. Basch, Charles E. Jarrett,
Dane A. Shrallow, and David M. Coffey, 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 (1) a Registration Statement on Form S-8 or other form in order to register under the Securities Act of 1933, as amended (the “Securities Act”) Common Shares, $1.00 par value, of the
Company (“Common Shares”) issuable pursuant to The Progressive 401(k) Plan, and (2) a Registration Statement on Form S-8 or other form in order to register under the Securities Act Common Shares issuable pursuant to The Progressive
Corporation Executive Deferred Compensation Plan, and to any and all amendments, post-effective amendments and exhibits to either such Registration Statement, and to any and all applications, instruments and other documents pertaining thereto,
giving and granting unto 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 signed in the capacities and on the date indicated below.
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Date: December 19, 2012
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/s/ Jeffrey W. Basch
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Jeffrey W. Basch
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Vice President and Chief Accounting Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned officer and director of The Progressive Corporation, an Ohio corporation (the
“Company”), has made, constituted and appointed, and by this instrument does make, constitute and appoint, Brian C. Domeck, Jeffrey W. Basch, Charles E. Jarrett, Dane A. Shrallow, and David M. Coffey, 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 (1) a Registration Statement on Form
S-8 or other form in order to register under the Securities Act of 1933, as amended (the “Securities Act”) Common Shares, $1.00 par value, of the Company (“Common Shares”) issuable pursuant to The Progressive 401(k) Plan, and
(2) a Registration Statement on Form S-8 or other form in order to register under the Securities Act Common Shares issuable pursuant to The Progressive Corporation Executive Deferred Compensation Plan, and to any and all amendments,
post-effective amendments and exhibits to either such Registration Statement, and to any and all applications, instruments and other documents pertaining thereto, giving and granting unto 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 signed in the capacities and on the date indicated below.
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Date: December 18, 2012
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/s/ Glenn M. Renwick
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Glenn M. Renwick
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President and Chief Executive Officer
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And Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned director of The Progressive Corporation, an Ohio corporation (the
“Company”), has made, constituted and appointed, and by this instrument does make, constitute and appoint, Brian C. Domeck, Jeffrey W. Basch, Charles E. Jarrett, Dane A. Shrallow, and David M. Coffey, 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 (1) a Registration Statement on Form
S-8 or other form in order to register under the Securities Act of 1933, as amended (the “Securities Act”) Common Shares, $1.00 par value, of the Company (“Common Shares”), issuable pursuant to The Progressive 401(k) Plan, and
(2) a Registration Statement on Form S-8 or other form in order to register under the Securities Act Common Shares issuable pursuant to The Progressive Corporation Executive Deferred Compensation Plan, and to any and all amendments,
post-effective amendments and exhibits to either such Registration Statement, and to any and all applications, instruments and other documents pertaining thereto, giving and granting unto 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 the undersigned 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 signed in the capacities and on the date indicated below.
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Date: December 18, 2012
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/s/ Stuart B. Burgdoerfer
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Stuart B. Burgdoerfer
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Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned director of The Progressive Corporation, an Ohio corporation (the
“Company”), has made, constituted and appointed, and by this instrument does make, constitute and appoint, Brian C. Domeck, Jeffrey W. Basch, Charles E. Jarrett, Dane A. Shrallow, and David M. Coffey, 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 (1) a Registration Statement on Form
S-8 or other form in order to register under the Securities Act of 1933, as amended (the “Securities Act”) Common Shares, $1.00 par value, of the Company (“Common Shares”), issuable pursuant to The Progressive 401(k) Plan, and
(2) a Registration Statement on Form S-8 or other form in order to register under the Securities Act Common Shares issuable pursuant to The Progressive Corporation Executive Deferred Compensation Plan, and to any and all amendments,
post-effective amendments and exhibits to either such Registration Statement, and to any and all applications, instruments and other documents pertaining thereto, giving and granting unto 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 the undersigned 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 signed in the capacities and on the date indicated below.
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Date: December 18, 2012
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/s/ Roger N. Farah
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Roger N. Farah
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Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned director of The Progressive Corporation, an Ohio corporation (the
“Company”), has made, constituted and appointed, and by this instrument does make, constitute and appoint, Brian C. Domeck, Jeffrey W. Basch, Charles E. Jarrett, Dane A. Shrallow, and David M. Coffey, 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 (1) a Registration Statement on Form
S-8 or other form in order to register under the Securities Act of 1933, as amended (the “Securities Act”) Common Shares, $1.00 par value, of the Company (“Common Shares”), issuable pursuant to The Progressive 401(k) Plan, and
(2) a Registration Statement on Form S-8 or other form in order to register under the Securities Act Common Shares issuable pursuant to The Progressive Corporation Executive Deferred Compensation Plan, and to any and all amendments,
post-effective amendments and exhibits to either such Registration Statement, and to any and all applications, instruments and other documents pertaining thereto, giving and granting unto 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 the undersigned 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 signed in the capacities and on the date indicated below.
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Date: December 18, 2012
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/s/ Stephen R. Hardis
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Stephen R. Hardis
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Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned director of The Progressive Corporation, an Ohio corporation (the
“Company”), has made, constituted and appointed, and by this instrument does make, constitute and appoint, Brian C. Domeck, Jeffrey W. Basch, Charles E. Jarrett, Dane A. Shrallow, and David M. Coffey, 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 (1) a Registration Statement on Form
S-8 or other form in order to register under the Securities Act of 1933, as amended (the “Securities Act”) Common Shares, $1.00 par value, of the Company (“Common Shares”), issuable pursuant to The Progressive 401(k) Plan, and
(2) a Registration Statement on Form S-8 or other form in order to register under the Securities Act Common Shares issuable pursuant to The Progressive Corporation Executive Deferred Compensation Plan, and to any and all amendments,
post-effective amendments and exhibits to either such Registration Statement, and to any and all applications, instruments and other documents pertaining thereto, giving and granting unto 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 the undersigned 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 signed in the capacities and on the date indicated below.
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Date: December 20, 2012
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/s/ Heidi G. Miller
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Heidi G. Miller
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Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned director of The Progressive Corporation, an Ohio corporation (the
“Company”), has made, constituted and appointed, and by this instrument does make, constitute and appoint, Brian C. Domeck, Jeffrey W. Basch, Charles E. Jarrett, Dane A. Shrallow, and David M. Coffey, 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 (1) a Registration Statement on Form
S-8 or other form in order to register under the Securities Act of 1933, as amended (the “Securities Act”) Common Shares, $1.00 par value, of the Company (“Common Shares”), issuable pursuant to The Progressive 401(k) Plan, and
(2) a Registration Statement on Form S-8 or other form in order to register under the Securities Act Common Shares issuable pursuant to The Progressive Corporation Executive Deferred Compensation Plan, and to any and all amendments,
post-effective amendments and exhibits to either such Registration Statement, and to any and all applications, instruments and other documents pertaining thereto, giving and granting unto 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 the undersigned 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 signed in the capacities and on the date indicated below.
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Date: December 19, 2012
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/s/ Bradley T. Sheares
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Bradley T. Sheares
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Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned director of The Progressive Corporation, an Ohio corporation (the
“Company”), has made, constituted and appointed, and by this instrument does make, constitute and appoint, Brian C. Domeck, Jeffrey W. Basch, Charles E. Jarrett, Dane A. Shrallow, and David M. Coffey, 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 (1) a Registration Statement on Form
S-8 or other form in order to register under the Securities Act of 1933, as amended (the “Securities Act”) Common Shares, $1.00 par value, of the Company (“Common Shares”), issuable pursuant to The Progressive 401(k) Plan, and
(2) a Registration Statement on Form S-8 or other form in order to register under the Securities Act Common Shares issuable pursuant to The Progressive Corporation Executive Deferred Compensation Plan, and to any and all amendments,
post-effective amendments and exhibits to either such Registration Statement, and to any and all applications, instruments and other documents pertaining thereto, giving and granting unto 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 the undersigned 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 signed in the capacities and on the date indicated below.
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Date: December 19, 2012
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/s/ Lawton W. Fitt
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Lawton W. Fitt
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Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned director of The Progressive Corporation, an Ohio corporation (the
“Company”), has made, constituted and appointed, and by this instrument does make, constitute and appoint, Brian C. Domeck, Jeffrey W. Basch, Charles E. Jarrett, Dane A. Shrallow, and David M. Coffey, 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 (1) a Registration Statement on Form
S-8 or other form in order to register under the Securities Act of 1933, as amended (the “Securities Act”) Common Shares, $1.00 par value, of the Company (“Common Shares”), issuable pursuant to The Progressive 401(k) Plan, and
(2) a Registration Statement on Form S-8 or other form in order to register under the Securities Act Common Shares issuable pursuant to The Progressive Corporation Executive Deferred Compensation Plan, and to any and all amendments,
post-effective amendments and exhibits to either such Registration Statement, and to any and all applications, instruments and other documents pertaining thereto, giving and granting unto 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 the undersigned 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 signed in the capacities and on the date indicated below.
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Date: December 18, 2012
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/s/ Peter B. Lewis
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Peter B. Lewis
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Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned director of The Progressive Corporation, an Ohio corporation (the
“Company”), has made, constituted and appointed, and by this instrument does make, constitute and appoint, Brian C. Domeck, Jeffrey W. Basch, Charles E. Jarrett, Dane A. Shrallow, and David M. Coffey, 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 (1) a Registration Statement on Form
S-8 or other form in order to register under the Securities Act of 1933, as amended (the “Securities Act”) Common Shares, $1.00 par value, of the Company (“Common Shares”), issuable pursuant to The Progressive 401(k) Plan, and
(2) a Registration Statement on Form S-8 or other form in order to register under the Securities Act Common Shares issuable pursuant to The Progressive Corporation Executive Deferred Compensation Plan, and to any and all amendments,
post-effective amendments and exhibits to either such Registration Statement, and to any and all applications, instruments and other documents pertaining thereto, giving and granting unto 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 the undersigned 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 signed in the capacities and on the date indicated below.
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Date: December 18, 2012
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/s/ Patrick H. Nettles
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Patrick H. Nettles
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Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned director of The Progressive Corporation, an Ohio corporation (the
“Company”), has made, constituted and appointed, and by this instrument does make, constitute and appoint, Brian C. Domeck, Jeffrey W. Basch, Charles E. Jarrett, Dane A. Shrallow, and David M. Coffey, 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 (1) a Registration Statement on Form
S-8 or other form in order to register under the Securities Act of 1933, as amended (the “Securities Act”) Common Shares, $1.00 par value, of the Company (“Common Shares”), issuable pursuant to The Progressive 401(k) Plan, and
(2) a Registration Statement on Form S-8 or other form in order to register under the Securities Act Common Shares issuable pursuant to The Progressive Corporation Executive Deferred Compensation Plan, and to any and all amendments,
post-effective amendments and exhibits to either such Registration Statement, and to any and all applications, instruments and other documents pertaining thereto, giving and granting unto 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 the undersigned 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 signed in the capacities and on the date indicated below.
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Date: December 19, 2012
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/s/ Charles A. Davis
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Charles A. Davis
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Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned director of The Progressive Corporation, an Ohio corporation (the
“Company”), has made, constituted and appointed, and by this instrument does make, constitute and appoint, Brian C. Domeck, Jeffrey W. Basch, Charles E. Jarrett, Dane A. Shrallow, and David M. Coffey, 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 (1) a Registration Statement on Form
S-8 or other form in order to register under the Securities Act of 1933, as amended (the “Securities Act”) Common Shares, $1.00 par value, of the Company (“Common Shares”), issuable pursuant to The Progressive 401(k) Plan, and
(2) a Registration Statement on Form S-8 or other form in order to register under the Securities Act Common Shares issuable pursuant to The Progressive Corporation Executive Deferred Compensation Plan, and to any and all amendments,
post-effective amendments and exhibits to either such Registration Statement, and to any and all applications, instruments and other documents pertaining thereto, giving and granting unto 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 the undersigned 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 signed in the capacities and on the date indicated below.
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Date: December 22, 2012
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/s/ Jeffrey D. Kelly
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Jeffrey D. Kelly
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Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned officer of The Progressive Corporation, an Ohio corporation (the
“Company”), has made, constituted and appointed, and by this instrument does make, constitute and appoint, Brian C. Domeck, Jeffrey W. Basch, Charles E. Jarrett, Dane A. Shrallow, and David M. Coffey, 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 (1) a Registration Statement on Form
S-8 or other form in order to register under the Securities Act of 1933, as amended (the “Securities Act”) Common Shares, $1.00 par value, of the Company (“Common Shares”) issuable pursuant to The Progressive 401(k) Plan, and
(2) a Registration Statement on Form S-8 or other form in order to register under the Securities Act Common Shares issuable pursuant to The Progressive Corporation Executive Deferred Compensation Plan, and to any and all amendments,
post-effective amendments and exhibits to either such Registration Statement, and to any and all applications, instruments and other documents pertaining thereto, giving and granting unto 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 signed in the capacities and on the date indicated below.
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Date: December 18, 2012
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/s/ Brian C. Domeck
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Brian C. Domeck
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Vice President and Chief Financial Officer
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Exhibit 24.2
THE PROGRESSIVE CORPORATION
401(k) PLAN
EXECUTIVE DEFERRED COMPENSATION PLAN
CERTIFIED COPY OF RESOLUTIONS
RESOLVED, that The Progressive
Corporation (the “Company”) reserve an additional Ten Million (10,000,000) Common Shares, $1 par value (“Common Shares”) for issuance or transfer pursuant to The Progressive 401(k) Plan (the “401(k) Plan”) and an
additional Seven Million Five Hundred Thousand (7,500,000) Common Shares for issuance or transfer pursuant to The Progressive Corporation Executive Deferred Compensation Plan (the “EDCP”), which amounts may be further increased by the
Board of Directors, from time to time, in its sole discretion, subject to any necessary approval by holders of Common Shares; and
FURTHER RESOLVED, that the Company be and hereby is authorized and empowered to direct the trustee of the 401(k) Plan to acquire Common Shares to be held in and/or delivered pursuant to the 401(k)
Plan’s Company Stock Fund at fair market value on the open market or directly from the Company through the issuance of authorized but previously unissued shares or treasury shares;
FURTHER RESOLVED, that the Company be and hereby is authorized and empowered to direct the trustee of the EDCP to acquire Common Shares
to be held in and/or delivered pursuant to the EDCP at fair market value on the open market or directly from the Company through the issuance of authorized but previously unissued shares or treasury shares;
FURTHER RESOLVED, that the President, any Vice President, the Treasurer, the Secretary and the Assistant Secretary of the Company be, and
each of them with full power to act without the others is, hereby authorized and directed 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”), for and on behalf of the Company, one or more Registration Statements on Form S-8 (each of which, together with the related prospectus and all exhibits and
other documents relating thereto, is herein referred to as a “Registration Statement”) with respect to the registration of the additional Common Shares of the Company hereinabove authorized for transfer or issuance under (1) the
401(k) Plan and (2) the EDCP and, in each case, any related derivative or other securities (including, without limitation, interests under the 401(k) Plan or the EDCP, as the case may be) (the “Plan Securities”), with such changes
(including, but not limited to, changes of a substantive nature) as any such officer or officers shall approve, which approval shall be shown conclusively by the execution of such Registration Statement by or on behalf of any such officer or
officers; and
FURTHER RESOLVED, that the President, any Vice President, the Treasurer, the Secretary and the Assistant
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 such amendments and supplements to each
such 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; and to do all
such other acts and things and to execute all such other documents as they, or any of them, deem necessary or desirable in order to cause each Registration Statement to comply with the Act and the rules and regulations
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promulgated by the Commission pursuant thereto (the “Rules and Regulations”), and to become effective under the Act and the Rules and Regulations; and
FURTHER RESOLVED, that when each Registration Statement has become effective, the President, any Vice President, the Treasurer, the
Secretary and the Assistant 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 execute and deliver any and all instruments, certificates
and/or other documents, and to do any and all acts and things, as may be necessary or appropriate in connection with the transfer or issuance of Plan Securities under the 401(k) Plan or the EDCP; and
FURTHER RESOLVED, that Charles E. Jarrett, or such other individual as the Compensation Committee of the Board of Directors may designate
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
FURTHER RESOLVED, that any director or officer of the Company required by law to affix his or her signature to the Registration Statement
and any and all amendments and supplements thereto may affix his or her signature personally, or by any attorney-in-fact, duly constituted in writing by said director or officer to sign his or her name thereto; and
FURTHER RESOLVED, that Glenn M. Renwick, Brian C. Domeck, Charles E. Jarrett, Jeffrey W. Basch, Dane A. Shrallow and David M. Coffey 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 each Registration Statement,
and any and all amendments or supplements to each Registration Statement and any and all applications or other documents to be filed with the Commission and any and all applications or other documents to be filed with any governmental or private
agency or official relative to the transfer or issuance of the Plan 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-in-fact 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, any Vice President, the Treasurer and the Secretary be, and each hereby is, authorized and empowered for and on behalf of the Company to execute a Power of Attorney
evidencing the foregoing appointment; and
FURTHER RESOLVED, that Glenn M. Renwick, Brian C. Domeck, Charles E. Jarrett,
Jeffrey W. Basch, Dane A. Shrallow and David M. Coffey be, and each of them with full power to act without the others is, hereby authorized and empowered to sign each Registration Statement and any and all amendments and supplements to such
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, any Vice
President, the Treasurer and the Secretary, and on behalf of and as attorneys for each director of the Company; and
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FURTHER RESOLVED, that each of the officers of the Company and its attorneys, David M.
Coffey, Suzanne M. Hanselman, R. Steven Kestner, Charles E. Jarrett, Dane A. Shrallow and Laurie F. Humphrey, be, and each of them with full power to act without the others is, hereby authorized and empowered to appear on behalf of the Company
before the Commission in connection with any and all matters relating to each Registration Statement and all amendments and supplements thereto; and
FURTHER RESOLVED, that the President, any Vice President, the Treasurer, the Secretary and the Assistant Secretary of the Company be, and each of them with full power to act without the others is, hereby
authorized and empowered, in the name and on behalf of the Company, to take any and all action which they, or any of them, deem necessary or advisable in order to obtain a permit to issue Plan Securities, or to register or qualify the Plan
Securities for transfer or issuance, or to request an exemption from registration of the Plan Securities, or to register or obtain a license for the Company as a dealer or broker, under the securities laws of such states of the United States of
America and of such foreign jurisdictions as any such officer or officers may deem advisable, and in connection with such registrations, permits, licenses, qualifications and exemptions to execute, acknowledge, verify, deliver, file and publish or
cause to be published all such applications, reports, resolutions, surety bonds, consents to service of process, appointments of attorneys to receive 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 registration or qualification in effect for as long as they may deem to be in the best interests of this Company or as required by law; and that
the execution by such officer or officers of any such document or the taking of any such action in connection with the foregoing matters shall be deemed to be conclusive evidence that such officer or officers deem(s) the taking of any such action to
be necessary or proper and in the best interests of the Company and approves such action; and
FURTHER RESOLVED, that the
Common Shares of the Company to be issued or transferred pursuant to and in accordance with the terms and provisions of the 401(k) Plan, the EDCP and each Registration Statement, shall be duly authorized and issued, fully paid and non-assessable
Common Shares of the Company, free of any shareholder preemptive rights; and
FURTHER RESOLVED, that the preparation,
execution and filing with the New York Stock Exchange of one or more Listing Applications or Supplemental Listing Applications (including all exhibits and supporting material) to list the Ten Million (10,000,000) Common Shares authorized to be
issued under the 401(k) Plan and the Seven Million Five Hundred Thousand (7,500,000) Common Shares to be issued under the EDCP, be, and they hereby are, in all respects authorized and approved; and that the officers of the Company and its
attorneys, David M. Coffey, Suzanne M. Hanselman, Charles E. Jarrett, R. Steven Kestner, Dane A. Shrallow and Laurie F. Humphrey, be, and each of them is, hereby authorized and empowered, at such time as to them shall seem advisable, 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 listing; and that such officers and attorneys be, and each of them hereby is, authorized to appear on behalf of the Company before the appropriate committee or
body of the New York Stock Exchange as such appearance may be required, with authority to make such changes in any such Listing Application as shall be presented thereto 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 such listing; and
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FURTHER RESOLVED, that the authority of American Stock Transfer & Trust Company,
LLC (“AST”), as transfer agent and registrar for the Company’s outstanding Common Shares, be, and it hereby is, extended to include the original issue and the transfer and registration from time to time of the additional Common Shares
to be issued under the 401(k) Plan or the EDCP, as herein authorized; and
FURTHER RESOLVED, that for the purpose of the
original issue or transfer of Common Shares by the Company under the 401(k) Plan or the EDCP as aforesaid, or the transfer of Common Shares by any trustee under the 401(k) Plan or the EDCP, AST, as transfer agent and registrar for the Common Shares,
be, and is hereby, authorized and directed to (i) countersign as such transfer agent by manual or facsimile signature stock certificates for the Common Shares to be so issued by the Company when such certificates shall be delivered to such
transfer agent duly executed on behalf of the Company, (ii) procure as registrar of the Common Shares the registration of such certificates, and (iii) deliver such certificates, when so countersigned and registered, to or upon the order of
the persons entitled thereto as set forth in the order or orders of the Company for the transfer or issuance of the Common Shares; and
FURTHER 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 and any state, institution, person or agency, 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
FURTHER RESOLVED, that the President, any Vice President, the Treasurer and the Secretary of
the Company be, and each of them with full power to act without the others is, hereby authorized and empowered to do or cause to be done all such acts or things, to cause to be paid all necessary fees and expenses, and to make, execute and deliver,
or cause to be made, executed and delivered, all such agreements, documents, instruments and certificates, in the name of and on behalf of the Company or otherwise, as they or any of them may deem necessary, advisable or appropriate to effectuate or
carry out the purposes and intent of the foregoing resolutions; and
FURTHER 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 authorized acts and deeds of the Company.
I, Charles E. Jarrett, 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 by the Executive Committee of the Board of
Directors by written action dated the 21
st
day of
December, 2012; 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.
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IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary and
affixed the seal of the Company on the 27
th
day of
December, 2012.
SEAL
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/s/ Charles E. Jarrett
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Charles E. Jarrett
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