EXHIBIT NO. 1
PROPOSED FORM OF UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
___________ __, 200_
The Progressive Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
___________________ as underwriter (hereinafter referred to as the "Manager" or
the "Underwriter") understands that The Progressive Corporation, an Ohio
corporation (the "Company"), proposes to issue and sell $___________ aggregate
principal amount of its [Interest Rate]% [Type of Debt Security] Due [Maturity
Date] (the "Offered Securities").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriter agrees
to purchase a total of $___________ principal amount of the Offered Securities
at a purchase price equal to ______% of the principal amount of the Offered
Securities plus accrued interest on the Offered Securities from __________ __,
____ to the date of payment and delivery. The Offered Securities will be offered
to the public at ______% of the principal amount, the underwriting discount will
be ____%, the selling concession to dealers will be ___% and the reallowance
concession will be ___%.
The Underwriter will pay for such Offered Securities upon delivery
thereof through the facilities of The Depository Trust Company at 10:00 A.M.
(New York time) on _______ __, ____, or at such other time, not later than
_______ __, ____, as shall be designated by the Underwriter with the consent of
the Company, which consent shall not unreasonably be withheld. Payment for the
Offered Securities shall be made in U.S. dollars in immediately available funds.
The Offered Securities shall have the following terms:
Maturity: _______ __, ____
Interest Rate: _____
Interest Payment Dates: __________ and __________
Redemption Provisions,
if any:
Trustee: State Street Bank and
Trust Company
Except as otherwise set forth herein, all the provisions contained in
the document entitled "The Progressive Corporation Underwriting Agreement
Standard Provisions (Debt)" dated October 2002, a copy of which you have
previously received, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Underwriting Agreement to the same extent
as if such provisions had been set forth in full herein.
Please confirm your agreement by having an authorized officer sign a
copy of this Underwriting Agreement in the space set forth below and returning
the signed copy to us and, in addition, have an authorized officer send us no
later than 11:00 A.M. [business day following date] by wire, telex or other
written means, the following message:
"We have entered into the Underwriting Agreement dated _______, ____
relating to the Offered Securities referred to therein by signing a copy of the
Underwriting Agreement and returning the same or depositing the same in the mail
to you."
Very truly yours,
[Name of Manager]
By
-----------------------------
Title:
Accepted:
THE PROGRESSIVE CORPORATION
By
-----------------------------------
Title:
THE PROGRESSIVE CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
October 2002
From time to time, The Progressive Corporation, an Ohio corporation
(the "Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is
sometimes herein referred to as "this Agreement." Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein as therein
defined.
I.
The Company proposes to issue from time to time debt securities to be
issued pursuant to the provisions of one or more Indentures, including any
amendments or supplements thereto (individually, an "Indenture") between the
Company and a trustee named therein. Such debt securities will have varying
designations, maturities, rates and times of payment of interest, selling
prices, redemption terms and other terms. Any such debt securities are herein
sometimes referred to as the "Securities."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including one or more prospectuses
relating to the Securities and has filed with, or mailed for filing to, the
Commission, pursuant to Rule 424 under the Securities Act of 1933, as amended, a
prospectus supplement or supplements specifically relating to the Securities to
be sold ("Offered Securities"). The term "Registration Statement" means the
registration statement as amended to the date of the Underwriting Agreement. The
term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus, together with the
prospectus supplement (other than a preliminary prospectus supplement)
specifically relating to the Offered Securities as filed with, or mailed for
filing to, the Commission pursuant to Rule 424. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating to
the Offered Securities, together with the Basic Prospectus. As used herein, the
terms "Registration Statement," "Basic Prospectus," "Prospectus" and
"preliminary prospectus" shall include in each case the material, if any,
incorporated by reference therein.
The term "Underwriters' Securities" means the Offered Securities to be
purchased by the Underwriters herein. The term "Contract Securities" means the
Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts"), but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the Manager as
compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the Contract Securities. The Underwriters
will not have any responsibility in respect of the validity or the performance
of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Offered Securities comprising the Contract
Securities shall be deducted from the Offered Securities comprising the
Underwriters' Securities to be purchased by the several Underwriters and the
aggregate principal amount of Offered Securities to be purchased by each
Underwriter shall be reduced pro rata in the same proportion as the principal
amount of Offered Securities set forth opposite such Underwriter's name in the
Underwriting Agreement bears to the total principal amount of all Offered
Securities in the Underwriting Agreement, except to the extent that the Manager
determines that such reduction shall be otherwise and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made by payment in
full of the requisite amount of funds specified in the Underwriting Agreement
and in accordance with the procedures set forth in the Underwriting Agreement,
upon delivery to the Manager for the respective accounts of the several
Underwriters of the Underwriters' Securities registered in such names and in
such denominations as the Manager shall request in writing not less than two
full business days prior to the date of delivery. The time and date of such
payment and delivery with respect to the Underwriters' Securities are herein
referred to as the "Closing Date."
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission and there shall have been no
material adverse change (not in the ordinary course of business) in the
condition of the Company and its subsidiaries, taken as a whole, from that set
forth in the Registration Statement and the Prospectus; and the Manager shall
have received, on the Closing Date, a certificate, dated the Closing Date and
signed by an executive officer of the Company, to the foregoing effect. The
officer making such certificate may rely upon the best of his knowledge as to
the proceedings pending or threatened.
(b) The Manager shall have received on the Closing Date an opinion of
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, as to
the matters set forth in Schedule II attached hereto. In giving their opinion
required by this Section V(b), ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP may rely as to all matters
of New York law on the opinion of counsel for the Underwriters.
(c) The Manager shall have received on the Closing Date an opinion of
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Closing Date, in
form and substance satisfactory to the Manager.
(d) The Manager shall have received on the date of the Underwriting
Agreement a letter dated such date, and also on the Closing Date a letter dated
the Closing Date, in form and substance satisfactory to the Manager, from
PricewaterhouseCoopers L.L.P., independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained or incorporated by reference in the
Registration Statement and the Prospectus.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, a copy of the
Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, and documents
incorporated by reference therein and any supplements and amendments
thereto, as the Manager may reasonably request. The terms "supplement"
and "amendment" or "amend" as used in this Agreement with respect to
the Registration Statement, Prospectus or preliminary prospectus shall
include all documents filed by the Company with the Commission
subsequent to the date of the
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Basic Prospectus, pursuant to the Securities Exchange Act of 1934, as
amended, which are deemed to be incorporated by reference in the
Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish the Manager a copy of each such proposed amendment or
supplement.
(c) If, during such period after the commencement of the
public offering of the Offered Securities as in the opinion of counsel
for the Underwriters the Prospectus is required by law to be delivered
with respect thereto, any event shall occur as a result of which the
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances then
existing, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith at its own expense, to
amend or supplement the Prospectus and furnish such amendment or
supplement to the Underwriters, so as to correct such statement or
omission or effect such compliance.
(d) To qualify the Offered Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the
Manager may reasonably designate; provided that the Company shall not
be required to qualify to do business in any jurisdiction where it is
not now qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction where it is
not now so subject.
(e) To make generally available to the Company's security
holders as soon as practicable an earnings statement covering a
12-month period beginning after the date of the Underwriting Agreement,
which shall satisfy the provisions of Section 11(a) of the Securities
Act of 1933, as amended, and Rule 158 and other applicable rules and
regulations of the Commission thereunder.
VII.
The Company represents and warrants to each Underwriter that (i) each
document filed or to be filed pursuant to the Securities Exchange Act of 1934,
as amended, and incorporated by reference in the Prospectus complied, or will
comply when so filed, in all material respects with such Act and the applicable
rules and regulations thereunder, (ii) each part of the Registration Statement
(including the documents incorporated by reference therein) filed with the
Commission pursuant to the Securities Act of 1933, as amended, relating to the
Securities, when such part became effective, did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances then existing, not misleading, (iii) each preliminary prospectus,
if any, filed pursuant to Rule 424 under the Securities Act of 1933, as amended,
complied when so filed in all material respects with such Act and the applicable
rules and regulations thereunder, (iv) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply in
all material respects with the Securities Act of 1933, as amended, and the
applicable rules and regulations thereunder and (v) the Registration Statement
and the Prospectus do not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; except
that the above representations and warranties do not apply to statements or
omissions in the Registration Statement, any preliminary prospectus or the
Prospectus based upon information furnished to the Company in writing by any
Underwriter expressly for use therein. In addition to the representations and
warranties set forth in this Article VII, the Company also makes the
representations and warranties set forth in Schedule III attached hereto.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act of 1933, as amended, or Section 20 of the
Securities Exchange Act of 1934, as amended, from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any preliminary prospectus or the Prospectus (if used within the
period set forth in paragraph (c) of Article VI hereof
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and as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances then
existing, not misleading, except to the extent that such losses, claims, damages
or liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing to the
Company by any Underwriter expressly for use therein; provided, however, that
the foregoing indemnity with respect to preliminary prospectuses or Prospectuses
shall not inure to the benefit of any Underwriter (or to the benefit of any
person controlling such Underwriter) from whom the person asserting any such
losses, claims, damages or liabilities purchased Offered Securities if such
untrue statement or omission or alleged untrue statement or omission made in any
preliminary prospectus is eliminated or remedied in the Prospectus or the
Prospectus as amended or supplemented (copies of which were delivered to such
Underwriter) and a copy of the Prospectus or the Prospectus as amended or
supplemented (excluding documents incorporated by reference) has not been
furnished to such person at or prior to the written confirmation of the sale of
such Offered Securities to such person.
Each underwriter agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and any person
controlling the Company to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to information furnished by
such Underwriter in writing expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus.
If any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated in
writing by the Manager in the case of parties indemnified pursuant to the
immediately preceding paragraph and by the Company in the case of parties
indemnified pursuant to the second preceding paragraph. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
If the indemnification provided for in this Article VII is unavailable
to an indemnified party under the second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company, on the one hand, and the Underwriters, on the other, from the
offering of the Offered Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above, but also the relative fault of the Company, on the one hand, and of the
Underwriters, on the other, in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and the Underwriters, on the other, in connection with
the offering of the Offered Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of such Offered
Securities (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters in respect
thereof. The relative fault of the Company, on the one hand, and of the
Underwriters, on the other, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a
5
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relevant intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation or by any method of allocation which does not take account of
the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten and distributed to the public
by such Underwriter were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of such fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act of 1933, as amended) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VII are several, in proportion to the respective principal amounts of
Offered Securities purchased by each of such Underwriter, and not joint.
The indemnity and contribution agreements contained in this Article VII
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by any Underwriter or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its directors or officers or any person controlling the Company,
and (iii) acceptance of and payment for any of the Offered Securities.
VIII.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Company, if prior to the
Closing Date, there shall be: (i) any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations, of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus; (ii) any downgrading in, or notice of any proposal to downgrade, the
rating of the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Securities Act of 1933, as amended) or any public announcement that any such
organization has under surveillance or review the rating of the Company's debt
securities with negative implications or without indicating the direction of
possible change; (iii) any suspension or material limitation of trading in
securities generally on or by the New York Stock Exchange, the American Stock
Exchange or the National Association of Securities Dealers, Inc., or any setting
of minimum prices for trading on such exchange; (iv) any suspension of trading
of any securities of the Company on any exchange; (v) any banking moratorium
declared by Federal or New York authorities or a disruption in commercial
banking or securities settlement or clearance services in the United States;
(vi) the outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war; or (vii)
the occurrence of any other calamity or crisis or any material adverse change in
financial, political or economic conditions in or affecting the United States,
if the effect of any such event set forth in (i) through (vii), in the judgment
of the Manager, makes it impractical or inadvisable to proceed with the public
offering or the delivery of the Offered Securities on the terms and in the
manner contemplated by the Prospectus.
IX.
If any one or more of the Underwriters shall fail or refuse to purchase
Offered Securities which it or they have agreed to purchase hereunder, and the
aggregate principal amount of Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the Offered Securities, the
other Underwriters shall be obligated severally in the proportions which the
aggregate principal amounts of Offered Securities set forth opposite their names
in the Underwriting Agreement bear to the aggregate principal amount of Offered
Securities set forth opposite the names of all such non-defaulting
6
Underwriters, or in such other proportions as the Manager may specify, to
purchase at Closing the Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase; provided
that in no event shall the principal amount of Offered Securities which any
Underwriter has agreed to purchase pursuant to the Underwriting Agreement be
increased pursuant to this paragraph by an amount in excess of one-ninth of such
principal amount of Offered Securities, without the written consent of such
Underwriter. In any such case, either the Manager or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. If any
Underwriter or Underwriters shall fail or refuse to purchase Offered Securities
and the aggregate principal amount of Offered Securities with respect to which
such default occurs is more than one-tenth of the aggregate principal amount of
the Offered Securities and arrangements satisfactory to the Manager and the
Company for the purchase of such Offered Securities are not made within 36 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or of the Company. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters or any of
them because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with the Offered
Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
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SCHEDULE I
DELAYED DELIVERY CONTRACT
, 200_
The Progressive Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned hereby agrees to purchase from The Progressive
Corporation, an Ohio corporation (the "Company"), and the Company agrees to sell
to the undersigned, $_____ principal amount of the Company's __% Notes due
_____________, ____ (the "Offered Securities"), offered by the Company's
Prospectus dated , 200_ and Prospectus Supplement dated , 200_, receipt of
copies of which is hereby acknowledged, at a purchase price of ___% of the
principal amount of such Offered Securities plus accrued interest from , 200_ to
the delivery date or dates thereof [and] [amortization of the original issue
discount from , 200_ to the delivery date or dates thereof] and on the further
terms and conditions set forth in this contract.
The undersigned does not contemplate selling Offered Securities prior
to making payment therefor.
The undersigned will purchase from the Company the principal amounts of
Offered Securities on the delivery dates set forth below:
[PLUS ACCRUED INTEREST FROM:
DELIVERY [AND] [AMORTIZATION OF
DATE PRINCIPAL AMOUNT ORIGINAL ISSUE DISCOUNT FROM:]
---- ---------------- ------------------------------
------------- ----------------------- -------------------------------
------------- ----------------------- -------------------------------
------------- ----------------------- -------------------------------
Each such date on which Offered Securities are to be purchased
hereunder is hereinafter referred to as a "Delivery Date."
Payment for the Offered Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made in U.S. dollars [or the equivalent
thereof in a foreign denominated coin or currency or units based on or relating
to currencies (including European Currency Units (ECU))] [by certified or
official bank check or checks payable to the Company or by bank wire transfer]
[by bank wire transfer] in immediately available funds at the office of
__________, in New York, N.Y., at _____ A.M. (New York time) on the Delivery
Date, upon delivery to the undersigned of the Offered Securities to be purchased
by the undersigned on the Delivery Date, in such denominations and registered in
such names as the undersigned may designate by written or telegraphic notice or
communication given to the Company not less than five full business days prior
to the Delivery Date. The obligation of the undersigned to take delivery of and
make payment for the Offered Securities on the Delivery Date shall be subject to
the conditions that (1) the purchase of Offered Securities to be made by the
undersigned shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which the undersigned is subject and (2) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above, of such
part of the Offered Securities as is to be sold to them. Promptly after
completion of sale and delivery to the Underwriters, the Company will mail or
deliver to the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Offered Securities by
any purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
I-1
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the
laws of the State of New York.
Yours very truly,
__________________________________
(Purchaser)
By:
-------------------------------
----------------------------------
(Title)
----------------------------------
----------------------------------
(Address)
Accepted:
THE PROGRESSIVE CORPORATION
By:
-----------------------------
Title:
I-2
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the representatives of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows: (Please print)
TELEPHONE NO.
(INCLUDING
NAME AREA CODES) DEPARTMENT
---- ----------- ----------
---------------- ------------------ -------------------
---------------- ------------------ -------------------
---------------- ------------------ -------------------
---------------- ------------------ -------------------
I-3
SCHEDULE II
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Ohio, with
all requisite corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) the Indenture has been duly authorized, executed and delivered by the
Company and, assuming due execution and delivery thereof by the
Trustee, is a valid and binding agreement of the Company and has been
duly qualified under the Trust Indenture Act of 1939, as amended;
(iii) the Debt Securities have been duly authorized and executed by the
Company and, assuming due authentication of the Debt Securities by the
Trustee in accordance with the terms of the Indenture, upon delivery
to the Underwriters against payment therefor in accordance with the
terms of the Underwriting Agreement, will be valid and binding
obligations of the Company;
(iv) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(v) the issuance and sale of the Debt Securities as provided in the
Underwriting Agreement, the execution and delivery of the Underwriting
Agreement, the consummation of the transactions contemplated thereby
and compliance with the terms and provisions thereof will not conflict
with or result in a breach of any of the terms or provisions of the
Amended Articles of Incorporation or the Code of Regulations or of any
material agreement or instrument known to us to which the Company is a
party or by which the Company is bound and will not constitute a
default thereunder or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company under any such agreement or
instrument;
(vi) no consent, approval, authorization or other order of or filing with
any regulatory authority or other governmental body in the United
States of America is required for execution and delivery of the
Underwriting Agreement by the Company, except such as have been
obtained and made under the Securities Act of 1933, as amended (the
"Act"), the Trust Indenture Act of 1939, as amended, and the General
Corporation Law of Ohio (except for consents, approvals,
authorizations, orders or filings under any securities or "blue sky"
laws or any insurance laws of any state, as to which we do not express
an opinion); and
(vii) (A) the Registration Statement has become effective under the Act,
and, to the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
threatened under the Act, (B) the Registration Statement and the
Prospectus, as of their respective effective or issue dates (except
for financial statements and financial data and related schedules and
notes, as to which we do not express an opinion), appeared on their
face to be appropriately responsive in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder, and (C) the descriptions in the Registration
Statement and the Prospectus, as of their respective effective or
issue dates, of statues, legal and governmental proceedings and
contracts and other documents, insofar as such descriptions constitute
a summary of such statutes, legal and governmental proceedings and
contracts and other documents, fairly presented in all material
respects the information required to be stated under the Act, the
Securities Exchange Act of 1934, as amended, and the respective rules
and regulations of the Commission thereunder, and we do not know of
any legal or governmental proceedings pending or threatened to which
the Company is a party or to which any property of the Company is
subject which are required to be described in the Prospectus, as of
its issue date, which were not described as required, or of any
contracts or other documents of a character required to be described
in the Registration Statement or the Prospectus, as of their
respective effective or issue dates, or to be filed as exhibits to the
Registration Statement, as of its effective date, which were not
described and filed as required (the opinion expressed in this
subparagraph being based solely on our review of the Registration
Statement and the Prospectus and discussion of the same with certain
officers of the Company, but without independent check or
verification, except as specified).
II-1
SCHEDULE III
(i) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(ii) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(iii) Each subsidiary of the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
incorporated or qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole.
(iv) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, assuming the due authorization,
execution and delivery by the Trustee, enforceable in accordance with
its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(vi) The Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company, assuming the due authorization, execution
and delivery by the other party, enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium or similar laws
affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(vii) The Offered Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with
the terms of the Underwriting Agreement, in the case of the
Underwriters' Securities, or by institutional investors in accordance
with the terms of the Delayed Delivery Contracts, if any, in the case
of the Contract Securities, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company, in
each case enforceable in accordance with their respective terms except
as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if any, and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(viii) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Underwriting Agreement, the
Indenture, the Offered Securities, and the Delayed Delivery Contracts,
if any, will not contravene in any material respect any provision of
applicable law or the Articles of Incorporation or Code of Regulations
of the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the
Company or any subsidiary that is material to the Company and its
subsidiaries, taken as a whole, and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its
obligations under this Underwriting Agreement, the Indenture, the
Offered Securities or the Delayed Delivery Contracts, except such as
may be required by the securities or Blue Sky laws or any insurance
laws of the various states in connection with the offer and sale of
the Offered Securities.
(ix) There has not occurred any material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus.
(x) There are no legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or to which
any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
(xi) The Company is not an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended.
(xii) The Company and its subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws
to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(xiii) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba.
(xiv) The ratios and other financial and statistical data contained in the
Registration Statement and the Prospectus have been prepared in
conformity in all material respects with the requirements of the
insurance laws, rules and regulations of any jurisdiction to which the
Company's subsidiaries are subject or generally accepted accounting
principles, as applicable, and present fairly the information
purported to be shown.
(xv) The reserves reflected in the Company's most recent quarterly or
annual report filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended, for payment of all outstanding
benefits, losses, claims and expenses under insurance policies and
programs issued or provided by the Company's subsidiaries are
adequate, based on generally accepted actuarial techniques applied on
a consistent basis, to cover in all material respects the total amount
of all outstanding liabilities incurred as of the date of such report
under all such insurance policies and programs under which such
subsidiaries may have any liability as of such date.
