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EXHIBIT 4(c)
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Amended Articles of Incorporation, as amended, of the Registrant
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CERTIFICATE
OF
AMENDED ARTICLES OF INCORPORATION
OF
THE PROGRESSIVE CORPORATION
PETER B. LEWIS, Chairman of the Board, and DAVID M. SCHNEIDER,
Secretary, of The Progressive Corporation, an Ohio corporation (the
"Corporation"), with its principal office at Mayfield Village, Cuyahoga County,
Ohio, do hereby certify that on April 20, 1984, in order to consolidate the
Corporation's existing Articles of Incorporation and all previously adopted
amendments thereto that were in force at that time, the directors of the
Corporation, at a meeting duly called and held, duly adopted, pursuant to the
authority of Ohio Code Section 1701.72(B), the Amended Articles of Incorporation
attached hereto as Exhibit I, to supersede and take the place of the existing
Articles of Incorporation and all amendments thereto. A true and correct copy of
the resolution as adopted by the directors of the Corporation is attached hereto
as Exhibit II.
IN WITNESS WHEREOF, said PETER B. LEWIS, Chairman of the Board, and
DAVID M. SCHNEIDER, Secretary, of The Progressive Corporation, acting for and in
behalf of said Corporation, have hereunto subscribed their names this 20th day
of April, 1984.
/s/ Peter B. Lewis
--------------------------------------
Peter B. Lewis, Chairman of the Board
/s/ David M. Schneider
--------------------------------------
David M. Schneider, Secretary
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EXHIBIT I
AMENDED ARTICLES OF INCORPORATION
OF
THE PROGRESSIVE CORPORATION
FIRST: The name of said corporation shall be THE PROGRESSIVE
CORPORATION.
SECOND: The place in the State of Ohio where its principal office is
to be located is Mayfield Village, Cuyahoga County.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be formed under Sections 1701.01 to
1701.98, inclusive, of the Ohio Revised Code.
FOURTH: SECTION 1. AUTHORIZED SHARES. The aggregate number of shares
which the corporation shall have authority to issue is 22,000,000 shares,
consisting of 2,000,000 Non-Voting Preferred Shares, without par value, and
20,000,000 Common Shares, $1.00 par value.
SECTION 2. ISSUANCE OF PREFERRED SHARES. The Board of Directors is
authorized at any time, and from time to time, to provide for the issuance of
Non-Voting Preferred Shares in one or more series, and to determine the
designations, preferences, limitations and relative or other rights of the
Non-Voting Preferred Shares or any series thereof. For each series, the Board of
Directors shall determine, by resolution or resolutions adopted prior to the
issuance of any shares thereof, the designations, preferences, limitations and
relative or other rights thereof, including but not limited to the following
relative rights and preferences, as to which there may be variations among
different series:
A. the division of such shares into series and the designation and
authorized number of shares of each series,
B. the dividend rate,
C. the dates of payment of dividends and the dates from which they
are cumulative,
D. liquidation price,
E. redemption rights and price,
F. sinking fund requirements,
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G. conversion rights, and
H. restrictions on the issuance of such shares.
Prior to the issuance of any shares of a series, but after adoption by
the Board of Directors of the resolution establishing such series, the
appropriate officers of the corporation shall file such documents with the State
of Ohio as may be required by law including, without limitation, an amendment to
these Articles of Incorporation.
SECTION 3. COMMON SHARES. Each Common Share shall entitle the holder
thereof to one vote, in person or by proxy, at any and all meetings of the
shareholders of the corporation, on all meetings of the shareholders of the
corporation, on all propositions before such meetings. Each Common Share shall
be entitled to participate equally in such dividends as may be declared by the
Board of Directors out of funds legally available therefor, and to participate
equally in all distributions of assets upon liquidation.
FIFTH: No holder of shares of the corporation of any class shall be
entitled as such, as a matter of right, to subscribe for or purchase shares of
any class, now or hereafter authorized, or to subscribe for or purchase
securities convertible into or exchangeable for shares of the corporation or to
which shall be attached or appertain any warrants or rights entitling the holder
thereof to subscribe for or purchase shares, except such rights of subscription
or purchase, if any, for such considerations and upon such terms and conditions
as its Board of Directors from time to time may determine.
SIXTH: Except as otherwise provided in these Articles of Incorporation
or the Code of Regulations of the corporation, notwithstanding any provisions in
Sections 1701.01 to 1701.98, inclusive, of the Ohio Revised Code, now or
hereafter in effect, requiring for any purpose the vote, consent, waiver or
release of the holders of a designated proportion (but less than all) of the
share of the corporation or any of particular class or classes of shares, as the
case may be, the vote, consent, waiver or release of the holders of shares
entitling them to exercise a majority of the voting power of the shares of the
corporation or of any class or classes of shares, as the case may be, shall be
required and sufficient for any such purpose, except that the affirmative vote
of the holders of record of 75 percent of the shares having voting power with
respect to any such proposal shall be required to amend, alter, change or repeal
Article NINTH of these Articles or the provisions of this Article SIXTH dealing
with the amendment, alteration, change or repeal of Article NINTH.
SEVENTH: To the extent permitted by law, the corporation, by action of
its Board of Directors, may purchase or otherwise acquire shares of any class
issued by it at such times, for such considerations and upon such terms and
conditions as its Board of Directors may determine.
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EIGHTH: These Amended Articles of Incorporation shall supersede and
take the place of the heretofore existing Articles of Incorporation of the
corporation and all amendments thereto.
NINTH: The affirmative vote of the holders of record of 75 percent of
the shares having voting power with respect to any such proposal AND the
affirmative vote of a majority of such holders of record other than shares held
or beneficially owned by a "Related Person" (as hereinafter defined) shall be
required for the approval or authorization of any "Business Combination" (as
hereinafter defined) of the corporation with any Related Person; provided,
however, that the 75 percent voting requirement and the majority voting
requirement of holders of record of shares other than a Related Person shall not
be applicable if:
1. A majority of the "Continuing Directors" of the Corporation (as
hereinafter defined) have approved the Business Combination; or
2. The Business Combination is a merger or consolidation and the cash
or fair market value of the property, securities or other consideration to
be received per share by holders of Common Shares of the corporation in the
Business Combination is not less than the highest per share price (with
appropriate adjustments for recapitalization and for share splits, share
dividends and like distributions), paid by the Related Person in acquiring
any of its holdings of the corporation's Common Shares.
For the purposes of this Article NINTH:
(a) The term "Business Combination" shall mean (i) any
merger or consolidation of the corporation or a subsidiary with or
into a Related Person, (ii) any sale, lease, exchange, transfer or
other disposition, including without limitation, a mortgage or any
other security device, of all or any "Substantial Part" (as
hereinafter defined) of the assets either of the corporation
(including without limitation any voting securities of a subsidiary)
or of a subsidiary, to a Related Person, (iii) any merger or
consolidation of a Related Person with or into the corporation or a
subsidiary of the corporation, (iv) any sale, lease, exchange,
transfer or other disposition of all or any Substantial Part of the
assets of a Related Person to the corporation or a subsidiary of the
corporation, (v) the issuance of any securities of the corporation or
a subsidiary of the corporation to a Related Person, (vi) any
recapitalization that would have the effect of increasing the voting
power of a Related Person, and (vii) any agreement, contract or other
arrangement providing for any of the transactions described in this
definition of Business Combination.
(b) The term "Related Person" shall mean and include any
individual, corporation, partnership or other person or entity which,
together with its "Affiliates" and "Associates" (as defined on
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September 1, 1982 at Rule 12b-2 under the Securities Exchange Act of
1934), "Beneficially Owns" (as defined on September 1, 1982 at Rule
13d-3 under the Securities Exchange Act of 1934) in the aggregate 20
percent or more of the outstanding Common Shares of the corporation,
and any Affiliate or Associate of any such individual, corporation,
partnership or other person or entity.
(c) The term "Substantial Part" shall mean more than 30
percent of the fair market value of the total assets of the
corporation in question, as of the end of its most recent fiscal year
ending prior to the time the determination is being made.
(d) Without limitation, any Common Shares of the corporation
that any Related Person has the right to acquire pursuant to any
agreement, or upon exercise of conversion rights, warrants or options,
or otherwise, shall be deemed beneficially owned by the Related
Person.
(e) For the purposes of sub-paragraph (2) of this Article
NINTH, the term "other consideration to be received" shall include,
without limitation, Common Shares of the corporation retained by its
existing public shareholders in the event of a Business Combination in
which the corporation is the surviving corporation.
(f) The term "Continuing Director" shall mean a director who
was a member of the Board of Directors of the corporation immediately
prior to the time that the Related Person involved in a Business
Combination became a Related Person.
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EXHIBIT II
THE PROGRESSIVE CORPORATION
DIRECTORS RESOLUTION
RESOLVED, that to consolidate the Company's existing Articles
of Incorporation and all previously adopted amendments thereto, the Amended
Articles of Incorporation presented to this meeting are hereby adopted to
supersede and take the place of the existing Articles and all amendments
thereto.
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CERTIFICATE OF AMENDMENT
TO
THE AMENDED ARTICLES OF INCORPORATION
OF
THE PROGRESSIVE CORPORATION
PETER B. LEWIS, Chairman of the Board, and DAVID M. SCHNEIDER,
Secretary, of The Progressive Corporation, an Ohio corporation for profit with
its principal office at Mayfield Village, Cuyahoga County, Ohio (the "Company"),
do hereby certify that a meeting of the shareholders of the Company was duly
called and held on April 25, 1986, at which meeting a quorum of the shareholders
was present in person or by proxy, and by the affirmative vote of the holders of
shares entitling them to exercise a majority of the voting power of the Company
on proposals to amend the Company's Amended Articles of Incorporation, the
following resolution was adopted:
RESOLVED, that Article FOURTH of the Company's Amended Articles of
Incorporation be, and the same hereby is, amended to be and read in its
entirety as follows:
FOURTH: SECTION 1. AUTHORIZED SHARES. The aggregate number of
shares which the corporation shall have authority to issue is
52,000,000 shares, consisting of 2,000,000 Non-Voting Preferred
Shares, without par value, and 50,000,000 Common Shares, $1.00 par
value.
SECTION 2. ISSUANCE OF PREFERRED SHARES. The Board of Directors
is authorized at any time, and from time to time, to provide for the
issuance of Non-Voting Preferred Shares in one or more series, and to
determine the designations, preferences, limitations and relative or
other rights of the Non-Voting Preferred Shares or any series thereof.
For each series, the Board of Directors shall determine, by resolution
or resolutions adopted prior to the issuance of any shares thereof,
the designations, preferences, limitations and relative or other
rights thereof, including but not limited to the following relative
rights and preferences, as to which there may be variations among
different series:
A. the division of such shares into series and the designation and
authorized number of shares of each series,
B. the dividend rate,
C. the dates of payment of dividends and the dates from which they
are cumulative,
D. liquidation price,
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E. redemption rights and price,
F. sinking fund requirements,
G. conversion rights, and
H. restrictions on the issuance of such shares.
Prior to the issuance of any shares of a series, but after adoption by
the Board of Directors of the resolution establishing such series, the
appropriate officers of the corporation shall file such documents with
the State of Ohio as may be required by law including, without
limitation, an amendment to these Amended Articles of Incorporation.
SECTION 3. COMMON SHARES. Each Common Share shall entitle the
holder thereof to one vote, in person or by proxy, at any and all
meetings of the shareholders of the corporation, on all propositions
before such meetings. Each Common Share shall be entitled to
participate equally in such dividends as may be declared by the Board
of Directors out of funds legally available therefor, and to
participate equally in all distributions of assets upon liquidation.
IN WITNESS WHEREOF, said PETER B. LEWIS, Chairman of the Board, and
DAVID M. SCHNEIDER, Secretary, of The Progressive Corporation, acting for and in
behalf of said corporation, have hereunto subscribed their names this 25th day
of April, 1986.
/s/ Peter B. Lewis
--------------------------------
Peter B. Lewis, Chairman
/s/ David M. Schneider
--------------------------------
David M. Schneider, Secretary
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CERTIFICATE OF AMENDMENT
TO
THE AMENDED ARTICLES OF INCORPORATION
OF
THE PROGRESSIVE CORPORATION
PETER B. LEWIS, Chairman of the Board, and DAVID M. SCHNEIDER,
Secretary, of The Progressive Corporation, an Ohio corporation for profit with
its principal office at 6300 Wilson Mills Road, Mayfield Village, Cuyahoga
County, Ohio (the "Company"), do hereby certify that a meeting of the
shareholders of the Company was duly called and held on April 24, 1987, at which
meeting a quorum of the shareholders was present in person or by proxy, and by
the affirmative vote of the holders of shares entitling them to exercise a
majority of the voting power of the Company on proposals to amend the Company's
Amended Articles of Incorporation, the following resolution was adopted:
RESOLVED, that Article FOURTH of the Company's Amended Articles of
Incorporation be, and the same hereby is, amended to be and read in its
entirety as follows:
FOURTH: SECTION 1. AUTHORIZED SHARES. The aggregate number of
shares which the corporation shall have authority to issue is
110,000,000 shares, consisting of 10,000,000 Non-Voting Preferred
Shares, without par value, and 100,000,000 Common Shares, $1.00 par
value.
SECTION 2. ISSUANCE OF PREFERRED SHARES. The Board of Directors
is authorized at any time, and from time to time, to provide for the
issuance of Non-Voting Preferred Shares in one or more series, and to
determine the designations, preferences, limitations and relative or
other rights of the Non-Voting Preferred Shares or any series thereof.
For each series, the Board of Directors shall determine, by resolution
or resolutions adopted prior to the issuance of any shares thereof,
the designations, preferences, limitations and relative or other
rights thereof, including but not limited to the following relative
rights and preferences, as to which there may be variations among
different series:
A. the division of such shares into series and the designation and
authorized number of shares of each series,
B. the dividend rate,
C. the dates of payment of dividends and the dates from which they
are cumulative,
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D. liquidation price,
E. redemption rights and price,
F. sinking fund requirements,
G. conversion rights, and
H. restrictions on the issuance of such shares.
Prior to the issuance of any shares of a series, but after adoption by
the Board of Directors of the resolution establishing such series, the
appropriate officers of the corporation shall file such documents with
the State of Ohio as may be required by law including, without
limitation, an amendment to these Amended Articles of Incorporation.
SECTION 3. COMMON SHARES. Each Common Share shall entitle the
holder thereof to one vote, in person or by proxy, at any and all
meetings of the shareholders of the corporation, on all propositions
before such meetings. Each Common Share shall be entitled to
participate equally in such dividends as may be declared by the Board
of Directors out of funds legally available therefor, and to
participate equally in all distributions of assets upon liquidation.
IN WITNESS WHEREOF, said PETER B. LEWIS, Chairman of the Board, and
DAVID M. SCHNEIDER, Secretary, of The Progressive Corporation, acting for and in
behalf of said corporation, have hereunto subscribed their names this 24th day
of April, 1987.
/s/ Peter B. Lewis
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Peter B. Lewis, Chairman
/s/ David M. Schneider
--------------------------------
David M. Schneider, Secretary
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CERTIFICATE OF AMENDMENT
TO
AMENDED ARTICLES OF INCORPORATION
OF
THE PROGRESSIVE CORPORATION
PETER B. LEWIS, President, and DAVID M. SCHNEIDER, Secretary, of The
Progressive Corporation, an Ohio corporation for profit with its principal
office at Mayfield Village, Cuyahoga County, Ohio (the "Company"), do hereby
certify that a meeting of the Shareholders of the Company was duly called and
held on April 19, 1991, at which meeting a quorum of the shareholders was
present in person or by proxy, and by the affirmative vote of the holders of
shares entitling them to exercise a majority of the voting power of the Company
on a proposal to amend the Company's Amended Articles of Incorporation, the
following resolution was adopted:
RESOLVED, that Article Fourth of the Company's Amended Articles of
Incorporation be, and the same hereby is, deleted in its entirety and there is
substituted therefor the following:
Article Fourth. The authorized number of shares of the
corporation is 125,000,000, consisting of 20,000,000 Serial
Preferred Shares, without par value (hereinafter called
"Serial Preferred Shares"), 5,000,000 Voting Preference
Shares, without par value (hereinafter called "Voting
Preference Shares"), and 100,000,000 Common Shares, $1.00 par
value (hereinafter called "Common Shares").
DIVISION A
The Serial Preferred Shares shall have the following express terms:
Section 1. Series. The Serial Preferred Shares may be issued
from time to time in one or more series. All shares of Serial Preferred
Shares shall be of equal rank and shall be identical, except in respect
of the matters that may be fixed by the Board of Directors as
hereinafter provided, and each share of a series shall be identical
with all other shares of such series, except as to the dates from which
dividends shall accrue and be cumulative. All Serial Preferred Shares
shall rank on a parity with and be identical to all Voting Preference
Shares except in respect of (i) the matters that may be fixed by the
Board of Directors as provided in clauses (a) through (i), both
inclusive, of this Section and (ii) the voting rights and provisions
for consents relating to Serial Preferred Shares as fixed and
determined by Section 5 of this Division. Subject to the provisions of
Sections 2 through 7, both inclusive, of this Division, which
provisions shall apply to all Serial Preferred Shares, the Board of
Directors hereby is authorized to cause such shares to be issued in one
or more series and with respect to each such series to determine and
fix prior to the issuance
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thereof (and thereafter, to the extent provided in clause (b) of this
Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series,
which number the Board of Directors may (except where
otherwise provided in the creation of the series) increase or
decrease from time to time before or after the issuance
thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series;
(d) The dates on which and the period or periods for
which dividends, if declared, shall be payable and the date or
dates from which dividends shall accrue and be cumulative;
(e) The redemption rights and price or prices, if
any, for shares of the series;
(f) The terms and amount of the sinking fund, if any,
for the purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the corporation;
(h) Whether the shares of the series shall be
convertible into Common Shares or shares of any other class
and, if so, the conversion rate or rates or price or prices,
any adjustments thereof and all other terms and conditions
upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in
Subsection 5(c) of this Division) on the issuance of shares of
the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended Articles of Incorporation fixing, with respect to each
such series, the matters described in clauses (a) through (i), both inclusive,
of this Section and is authorized to take such actions with respect thereto as
may be required by law in order to effect such amendments.
Section 2. Dividends.
(a) The holders of Serial Preferred Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Serial Preferred Shares, shall be entitled
to receive out of any funds legally
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available for Serial Preferred Shares and Voting Preference Shares and
when and as declared by the Board of Directors, dividends in cash at
the rate or rates for such series fixed in accordance with the
provisions of Section 1 of this Division and no more, payable on the
dates fixed for such series. Such dividends shall accrue and be
cumulative, in the case of shares of each particular series, from and
after the date or dates fixed with respect to such series. No dividends
shall be paid upon or declared or set apart for any series of the
Serial Preferred Shares for any dividend period unless at the same time
(1) a like proportionate dividend for the dividend periods terminating
on the same or any earlier date, ratably in proportion to the
respective dividend rates fixed therefor, shall have been paid upon or
declared or set apart for all Serial Preferred Shares of all series
then issued and outstanding and entitled to receive such dividend and
(2) the dividends payable for the dividend periods terminating on the
same or any earlier date, ratably in proportion to the respective
dividend rates fixed therefor, shall have been paid upon or declared or
set apart for all Voting Preference Shares of all series then issued
and outstanding and entitled to receive such dividend.
(b) So long as any Serial Preferred Shares shall be
outstanding no dividend, except a dividend payable in Common Shares or
other shares ranking junior to the Serial Preferred Shares, shall be
paid or declared or any distribution be made, except as aforesaid, in
respect of the Common Shares or any other shares ranking junior to the
Serial Preferred Shares, nor shall any Common Shares or any other
shares ranking junior to the Serial Preferred Shares be purchased,
retired or otherwise acquired by the corporation, except out of the
proceeds of the sale of Common Shares or other shares of the
corporation ranking junior to the Serial Preferred Shares received by
the corporation subsequent to the date of first issuance of Serial
Preferred Shares of any series, unless:
(1) All accrued and unpaid dividends on Serial
Preferred Shares, including the full dividends for all current
dividend periods, shall have been declared and paid or a sum
sufficient for payment thereof set apart; and
(2) There shall be no arrearages with respect to the
redemption of Serial Preferred Shares of any series from any
sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Division.
Section 3. Redemption.
(a) Subject to the express terms of each series and to the
provisions of Subsection 5(c)(3) of this Division, the corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Serial Preferred Shares at the time outstanding at the
applicable redemption price for such
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series fixed in accordance with the provisions of Section 1 of
this Division; and
(2) Shall, from time to time, make such redemptions
of each series of Serial Preferred Shares as may be required
to fulfill the requirements of any sinking fund provided for
shares of such series at the applicable sinking fund
redemption price fixed in accordance with the provisions of
Section 1 of this Division;
and shall in each case pay all accrued and unpaid dividends to the
redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Serial
Preferred Shares to be redeemed at their respective addresses
then appearing on the books of the corporation, not less than
30 days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Division prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
corporation may deposit the aggregate redemption price of
Serial Preferred Shares to be redeemed, together with accrued
and unpaid dividends thereon to the redemption date, with any
bank or trust company in Cleveland, Ohio or New York, New
York, having capital and surplus of not less than
$100,000,000, named in such notice and direct that there be
paid to the respective holders of the Serial Preferred Shares
so to be redeemed amounts equal to the redemption price of the
Serial Preferred Shares so to be redeemed, together with such
accrued and unpaid dividends thereon, on surrender of the
share certificate or certificates held by such holders; and
upon the deposit of such notice in the mail and the making of
such deposit of money with such bank or trust company, such
holders shall cease to be shareholders with respect to such
shares; and from and after the time such notice shall have
been so deposited and such deposit of money shall have been so
made, such holders shall have no rights or claim against the
corporation with respect to such shares, except only the right
to receive such money from such bank or trust company without
interest or to exercise before the redemption date any
unexpired privileges of conversion. In the event less than all
of the outstanding Serial Preferred Shares are to be redeemed,
the corporation shall select by lot the shares so to be
redeemed in such manner as shall be prescribed by the Board of
Directors.
(2) If the holders of Serial Preferred Shares which
have been called for redemption shall not within six years
after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company shall, upon
demand, pay over to the corporation such unclaimed amounts and
thereupon such bank or trust company and the corporation shall
be relieved of all responsibility in respect thereof and to
such holders.
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(c) Any Serial Preferred Shares which are (1) redeemed by the
corporation pursuant to the provisions of this Section, (2) purchased
and delivered in satisfaction of any sinking fund requirements provided
for shares of such series, (3) converted in accordance with the express
terms thereof, or (4) otherwise acquired by the corporation, shall
resume the status of authorized but unissued Serial Preferred Shares
without serial designation.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
corporation, the holders of Serial Preferred Shares of any
series shall be entitled to receive in full out of the assets
of the corporation, including its capital, before any amount
shall be paid or distributed among the holders of the Common
Shares or any other shares ranking junior to the Serial
Preferred Shares, the amounts fixed with respect to shares of
such series in accordance with Section 1 of this Division,
plus an amount equal to all dividends accrued and unpaid
thereon to the date of payment of the amount due pursuant to
such liquidation, dissolution or winding up of the affairs of
the corporation. In the event the net assets of the
corporation legally available therefor are insufficient to
permit the payment upon all outstanding Serial Preferred
Shares and Voting Preference Shares of the full preferential
amount to which they are respectively entitled, then such net
assets shall be distributed ratably upon all outstanding
Serial Preferred Shares and Voting Preference Shares in
proportion to the full preferential amount to which each such
share is entitled.
(2) After payment to the holders of Serial Preferred
Shares of the full preferential amounts as aforesaid, the
holders of Serial Preferred Shares, as such, shall have no
right or claim to any of the remaining assets of the
corporation.
(b) The merger or consolidation of the corporation into or
with any other corporation, the merger of any other corporation into
it, or the sale, lease or conveyance of all or substantially all the
assets of the corporation, shall not be deemed to be a dissolution,
liquidation or winding up for the purposes of this Section.
Section 5. Voting.
(a) The holders of Serial Preferred Shares shall have no
voting rights, except as provided in this Section or required by law.
(b) (1) If, and so often as, the corporation shall be in
default in the payment of the equivalent of the full dividends
on any series of Serial Preferred Shares at the time
outstanding, whether or not earned or declared, for a number
of dividend payment periods (whether or not
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consecutive) which in the aggregate contain at least 540 days,
the holders of Serial Preferred Shares of all series, voting
separately as a class, shall be entitled to elect, as herein
provided, two members of the Board of Directors of the
corporation; provided, however, that the holders of Serial
Preferred Shares shall not have or exercise such special class
voting rights except at meetings of such shareholders for the
election of directors at which the holders of not less than
50% of the outstanding Serial Preferred Shares of all series
then outstanding are present in person or by proxy; and
provided further that the special class voting rights provided
for in this paragraph when the same shall have become vested
shall remain so vested until all accrued and unpaid dividends
on the Serial Preferred Shares of all series then outstanding
shall have been paid, whereupon the holders of Serial
Preferred Shares shall be divested of their special class
voting rights in respect of subsequent elections of directors,
subject to the revesting of such special class voting rights
in the event above specified in this paragraph.
(2) In the event of default entitling the holders of
Serial Preferred Shares to elect two directors as specified in
paragraph (1) of this Subsection, a special meeting of such
holders for the purpose of electing such directors shall be
called by the Secretary of the corporation upon written
request of, or may be called by, the holders of record of at
least 10% of the Serial Preferred Shares of all series at the
time outstanding, and notice thereof shall be given in the
same manner as that required for the annual meeting of
shareholders; provided, however, that the corporation shall
not be required to call such special meeting if the annual
meeting of shareholders shall be called to be held within 120
days after the date of receipt of the foregoing written
request from the holders of Serial Preferred Shares. At any
meeting at which the holders of Serial Preferred Shares shall
be entitled to elect directors, the holders of 50% of the
Serial Preferred Shares of all series at the time outstanding,
present in person or by proxy, shall be sufficient to
constitute a quorum, and the vote of the holders of a majority
of such shares so present at any such meeting at which there
shall be such a quorum shall be sufficient to elect the
members of the Board of Directors which the holders of Serial
Preferred Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended Articles of
Incorporation or the Code of Regulations of the corporation or
any action taken by the holders of any class of shares fixing
the number of directors of the corporation, the two directors
who may be elected by the holders of Serial Preferred Shares
pursuant to this Subsection shall serve in addition to any
other directors then in office or proposed to be elected
otherwise than pursuant to this Subsection. Nothing in this
Subsection shall prevent any change otherwise permitted in the
total number of directors of the corporation nor require the
resignation of any director elected otherwise than pursuant to
this Subsection. Notwithstanding any classification of the
other directors of the corporation, the two directors elected
by the holders of Serial
18
Preferred Shares shall be elected annually for terms expiring
at the next succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class voting
rights of the holders of the Serial Preferred Shares in
respect of elections of directors as provided in this
Subsection, the terms of office of all directors then in
office elected by such holders shall terminate immediately
thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
resignation, removal from office or otherwise, the remaining
director elected by such holders voting as a class may elect a
successor who shall hold office for the unexpired term in
respect of which such vacancy occurred.
(c) The affirmative vote or consent of the holders of at least
two-thirds of the Serial Preferred Shares at the time outstanding,
voting or consenting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose, shall be
necessary to effect any one or more of the following (but so far as the
holders of Serial Preferred Shares are concerned, such action may be
effected with such vote or consent):
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended Articles of Incorporation or of the Code of
Regulations of the corporation which affects adversely the
preferences or voting or other rights of the holders of Serial
Preferred Shares; provided, however, neither the amendment of
the Amended Articles of Incorporation so as to authorize,
create or change the authorized or outstanding number of
Serial Preferred Shares or of any shares ranking on a parity
with or junior to the Serial Preferred Shares nor the
amendment of the provisions of the Code of Regulations so as
to change the number of directors of the corporation shall be
deemed to affect adversely the preferences or voting or other
rights of the holders of Serial Preferred Shares; and provided
further, that if such amendment, alteration or repeal affects
adversely the preferences or voting or other rights of one or
more but not all series of Serial Preferred Shares at the time
outstanding, only the affirmative vote or consent of the
holders of at least two-thirds of the number of the shares at
the time outstanding of the series so affected shall be
required;
(2) The authorization, creation or the increase in
the authorized number of any shares, or any security
convertible into shares, in either case ranking prior to the
Serial Preferred Shares; or
(3) The purchase or redemption (for sinking fund
purposes or otherwise) of less than all of the Serial
Preferred Shares then outstanding except in accordance with a
stock purchase offer made to all holders of record of Serial
Preferred Shares, unless all dividends on all Serial Preferred
Shares then outstanding for all previous dividend periods
shall
19
have been declared and paid or funds therefor set apart and
all accrued sinking fund obligations applicable thereto shall
have been complied with.
Section 6. Pre-emptive Rights. No holder of Serial Preferred Shares as
such, shall have any pre-emptive right to purchase, have offered to him for
purchase or subscribe for any of the corporation's shares or other securities of
any class, whether now or hereafter authorized.
Section 7. Definitions. For the purposes of this Division:
(a) Whenever reference is made to shares "ranking prior to the
Serial Preferred Shares," such reference shall mean and include all
shares of the corporation in respect of which the rights of the holders
thereof as to the payment of dividends or as to distributions in the
event of a voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the corporation are given preference over the
rights of the holders of Serial Preferred Shares;
(b) Whenever reference is made to shares "on a parity with the
Serial Preferred Shares," such reference shall mean and include all
Voting Preference Shares and all other shares of the corporation in
respect of which the rights of the holders thereof as to the payment of
dividends or as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the corporation rank equally (except as to the amounts fixed therefor)
with the rights of the holders of Serial Preferred Shares; and
(c) Whenever reference is made to shares "ranking junior to
the Serial Preferred Shares," such reference shall mean and include all
shares of the corporation other than those defined under Subsections
(a) and (b) of this Section as shares "ranking prior to" or "on a
parity with" the Serial Preferred Shares.
DIVISION B
The Voting Preference Shares shall have the following express terms:
Section 1. Series. The Voting Preference Shares may be issued from time
to time in one or more series. All shares of Voting Preference Shares shall be
of equal rank and shall be identical, except in respect of the matters that may
be fixed by the Board of Directors as hereinafter provided, and each share of a
series shall be identical with all other shares of such series, except as to the
dates from which dividends shall accrue and be cumulative. All Voting Preference
Shares shall rank on a parity with and be identical to all Serial Preferred
Shares except in respect of (i) the matters that may be fixed by the Board of
Directors as provided in clauses (a) through (i), both inclusive, of this
Section and (ii) the voting rights and provisions for consents relating to
Voting Preference Shares as fixed and determined by Section 5 of this Division.
Subject to the provisions of Sections 2 through 7, both inclusive, of this
Division, which provisions shall apply to all Voting Preference Shares, the
Board of Directors hereby is authorized to cause such shares to be issued in one
or more series and with respect to each such
20
series to determine and fix prior to the issuance thereof (and thereafter, to
the extent provided in clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series, which
number the Board of Directors may (except where otherwise provided in
the creation of the series) increase or decrease from time to time
before or after the issuance thereof (but not below the number of
shares thereof then outstanding);
(c) The dividend rate or rates of the series;
(d) The dates on which and the period or periods for which
dividends, if declared, shall be payable and the date or dates from
which dividends shall accrue and be cumulative;
(e) The redemption rights and price or prices, if any, for
shares of the series;
(f) The terms and amount of the sinking fund, if any, for the
purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in the event
of any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the corporation;
(h) Whether the shares of the series shall be convertible into
Common Shares or shares of any other class and, if so, the conversion
rate or rates or price or prices, any adjustments thereof and all other
terms and conditions upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth in Subsection
5(c) of this Division) on the issuance of shares of the same series or
of any other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended Articles of Incorporation fixing, with respect to each
such series, the matters described in clauses (a) through (i), both inclusive,
of this Section and is authorized to take such actions with respect thereto as
may be required by law in order to effect such amendments.
Section 2. Dividends.
(a) The holders of Voting Preference Shares of each series, in
preference to the holders of Common Shares and of any other class of
shares ranking junior to the Voting Preference Shares, shall be
entitled to receive out of any funds legally available for Voting
Preference Shares and Serial Preferred Shares and
21
when and as declared by the Board of Directors, dividends in cash at
the rate or rates for such series fixed in accordance with the
provisions of Section 1 of this Division and no more, payable on the
dates fixed for such series. Such dividends shall accrue and be
cumulative, in the case of shares of each particular series, from and
after the date or dates fixed with respect to such series. No dividends
shall be paid upon or declared or set apart for any series of the
Voting Preference Shares for any dividend period unless at the same
time (1) a like proportionate dividend for the dividend periods
terminating on the same or any earlier date, ratably in proportion to
the respective annual dividend rates fixed therefor, shall have been
paid upon or declared or set apart for all Voting Preference Shares of
all series then issued and outstanding and entitled to receive such
dividend and (2) the dividends payable for the dividend periods
terminating on the same or any earlier date, ratably in proportion to
the respective dividend rates fixed therefor, shall have been paid upon
or declared or set apart for all Serial Preferred Shares of all series
then issued and outstanding and entitled to receive such dividend.
(b) So long as any Voting Preference Shares shall be
outstanding no dividend, except a dividend payable in Common Shares or
other shares ranking junior to the Voting Preference Shares, shall be
paid or declared or any distribution be made, except as aforesaid, in
respect of the Common Shares or any other shares ranking junior to the
Voting Preference Shares, nor shall any Common Shares or any other
shares ranking junior to the Voting Preference Shares be purchased,
retired or otherwise acquired by the corporation, except out of the
proceeds of the sale of Common Shares or other shares of the
corporation ranking junior to the Voting Preference Shares received by
the corporation subsequent to the date of first issuance of Voting
Preference Shares of any series, unless:
(1) All accrued and unpaid dividends on Voting
Preference Shares, including the full dividends for all
current dividend periods, shall have been declared and paid or
a sum sufficient for payment thereof set apart; and
(2) There shall be no arrearages with respect to the
redemption of Voting Preference Shares of any series from any
sinking fund provided for shares of such series in accordance
with the provisions of Section 1 of this Division.
Section 3. Redemption.
(a) Subject to the express terms of each series and the
provisions of Subsection 5(c)(6) of this Division, the corporation:
(1) May, from time to time at the option of the Board
of Directors, redeem all or any part of any redeemable series
of Voting Preference Shares at the time outstanding at the
applicable redemption price for such
22
series fixed in accordance with the provisions of Section 1 of
this Division; and
(2) Shall, from time to time, make such redemptions
of each series of Voting Preference Shares as may be required
to fulfill the requirements of any sinking fund provided for
shares of such series at the applicable sinking fund
redemption price fixed in accordance with the provisions of
Section 1 of this Division;
and shall in each case pay all accrued and unpaid dividends to the
redemption date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Voting
Preference Shares to be redeemed at their respective addresses
then appearing on the books of the corporation, not less than
30 days nor more than 60 days prior to the date fixed for such
redemption, or such other time prior thereto as the Board of
Directors shall fix for any series pursuant to Section 1 of
this Division prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the
corporation may deposit the aggregate redemption price of
Voting Preference Shares to be redeemed, together with accrued
and unpaid dividends thereon to the redemption date, with any
bank or trust company in Cleveland, Ohio or New York, New
York, having capital and surplus of not less than
$100,000,000, named in such notice and direct that there be
paid to the respective holders of the Voting Preference Shares
so to be redeemed amounts equal to the redemption price of the
Voting Preference Shares so to be redeemed, together with such
accrued and unpaid dividends thereon, on surrender of the
share certificate or certificates held by such holders; and
upon the deposit of such notice in the mail and the making of
such deposit of money with such bank or trust company, such
holders shall cease to be shareholders with respect to such
shares; and from and after the time such notice shall have
been so deposited and such deposit of money shall have been so
made, such holders shall have no rights or claim against the
corporation with respect to such shares, except only the right
to receive such money from such bank or trust company without
interest or to exercise before the redemption date any
unexpired privileges of conversion. In the event less than all
of the outstanding Voting Preference Shares are to be
redeemed, the corporation shall select by lot the shares so to
be redeemed in such manner as shall be prescribed by the Board
of Directors.
(2) If the holders of Voting Preference Shares which
have been called for redemption shall not within six years
after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company shall, upon
demand, pay over to the corporation such unclaimed amounts and
thereupon such bank or trust company and the corporation shall
be relieved of all responsibility in respect thereof and to
such holders.
23
(c) Any Voting Preference Shares which are (1) redeemed by the
corporation pursuant to the provisions of this Section, (2) purchased
and delivered in satisfaction of any sinking fund requirements provided
for shares of such series, (3) converted in accordance with the express
terms thereof, or (4) otherwise acquired by the corporation, shall
resume the status of authorized but unissued Voting Preference Shares
without serial designation.
Section 4. Liquidation.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
corporation, the holders of Voting Preference Shares of any
series shall be entitled to receive in full out of the assets
of the corporation, including its capital, before any amount
shall be paid or distributed among the holders of the Common
Shares or any other shares ranking junior to the Voting
Preference Shares, the amounts fixed with respect to shares of
such series in accordance with Section 1 of this Division,
plus an amount equal to all dividends accrued and unpaid
thereon to the date of payment of the amount due pursuant to
such liquidation, dissolution or winding up of the affairs of
the corporation. In the event the net assets of the
corporation legally available therefor are insufficient to
permit the payment upon all outstanding Voting Preference
Shares and Serial Preferred Shares of the full preferential
amount to which they are respectively entitled, then such net
assets shall be distributed ratably upon all outstanding
Voting Preference Shares and Serial Preferred Shares in
proportion to the full preferential amount to which each such
share is entitled.
(2) After payment to the holders of Voting Preference
Shares of the full preferential amounts as aforesaid, the
holders of Voting Preference Shares, as such, shall have no
right or claim to any of the remaining assets of the
corporation.
(b) The merger or consolidation of the corporation into or
with any other corporation, the merger of any other corporation into
it, or the sale, lease or conveyance of all or substantially all the
assets of the corporation, shall not be deemed to be a dissolution,
liquidation or winding up for the purposes of this Section.
Section 5. Voting.
(a) The holders of Voting Preference Shares shall be entitled
at all times to one vote for each share and, except as otherwise
provided in this Section or required by law, the holders of Voting
Preference Shares and the holders of Common Shares shall vote together
as a class on all matters presented, subject, however, to the special
voting rights of the holders of Serial Preferred Shares as provided in
Section 5 of Division A hereof.
24
(b) (1) If, and so often as, the corporation shall be in
default in the payment of the equivalent of the full dividends
on any series of Voting Preference Shares at the time
outstanding, whether or not earned or declared, for a number
of dividend payment periods (whether or not consecutive) which
in the aggregate contain at least 540 days, the holders of
Voting Preference Shares of all series, voting separately as a
class, shall be entitled to elect, as herein provided, two
members of the Board of Directors of the corporation;
provided, however, that the holders of Voting Preference
Shares shall not have or exercise such special class voting
rights except at meetings of such shareholders for the
election of directors at which the holders of not less than
50% of the outstanding Voting Preference Shares of all series
then outstanding are present in person or by proxy; and
provided further that the special class voting rights provided
for in this paragraph when the same shall have become vested
shall remain so vested until all accrued and unpaid dividends
on the Voting Preference Shares of all series then outstanding
shall have been paid, whereupon the holders of Voting
Preference Shares shall be divested of their special class
voting rights in respect of subsequent elections of directors,
subject to the revesting of such special class voting rights
in the event above specified in this paragraph.
(2) In the event of default entitling the holders of
Voting Preference Shares to elect two directors as specified
in paragraph (1) of this Subsection, a special meeting of such
holders for the purpose of electing such directors shall be
called by the Secretary of the corporation upon written
request of, or may be called by, the holders of record of at
least 10% of the Voting Preference Shares of all series at the
time outstanding, and notice thereof shall be given in the
same manner as that required for the annual meeting of
shareholders; provided, however, that the corporation shall
not be required to call such special meeting if the annual
meeting of shareholders shall be called to be held within 120
days after the date of receipt of the foregoing written
request from the holders of Voting Preference Shares. At any
meeting at which the holders of Voting Preference Shares shall
be entitled to elect directors, the holders of 50% of the
Voting Preference Shares of all series at the time
outstanding, present in person or by proxy, shall be
sufficient to constitute a quorum, and the vote of the holders
of a majority of such shares so present at any such meeting at
which there shall be such a quorum shall be sufficient to
elect the members of the Board of Directors which the holders
of Voting Preference Shares are entitled to elect as herein
provided. Notwithstanding any provision of these Amended
Articles of Incorporation or the Code of Regulations of the
corporation or any action taken by the holders of any class of
shares fixing the number of directors of the corporation, the
two directors who may be elected by the holders of Voting
Preference Shares pursuant to this Subsection shall serve in
addition to any other directors then in office or proposed to
be elected otherwise than pursuant to this Subsection. Nothing
in this Subsection shall prevent any
25
change otherwise permitted in the total number of directors of
the corporation or require the resignation of any director
elected otherwise than pursuant to this Subsection.
Notwithstanding any classification of the other directors of
the corporation, the two directors elected by the holders of
Voting Preference Shares shall be elected annually for terms
expiring at the next succeeding annual meeting of
shareholders.
(3) Upon any divesting of the special class voting
rights of the holders of the Voting Preference Shares in
respect of elections of directors as provided in this
Subsection, the terms of office of all directors then in
office elected by such holders shall terminate immediately
thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,
resignation, removal from office or otherwise, the remaining
director elected by such holders voting as a class may elect a
successor who shall hold office for the unexpired term in
respect of which such vacancy occurred.
(c) The affirmative vote or consent of the holders of at least
two-thirds of the Voting Preference Shares at the time outstanding,
voting or consenting separately as a class, given in person or by proxy
either in writing or at a meeting called for the purpose, shall be
necessary to effect any one or more of the following (but so far as the
holders of Voting Preference Shares are concerned, such action may be
effected with such vote or consent):
(1) The sale, lease or conveyance by the corporation
of all or substantially all of its assets;
(2) The merger or consolidation of the corporation
into or with any other corporation or the merger of any other
corporation into it;
(3) The voluntary liquidation, dissolution or winding
up of the affairs of the corporation;
(4) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions
of the Amended Articles of Incorporation or of the Code of
Regulations of the corporation which affects adversely the
preferences or voting or other rights of the holders of Voting
Preference Shares; provided, however, that for the purpose of
this paragraph only, neither the amendment of the Amended
Articles of Incorporation so as to authorize, create or change
the authorized or outstanding number of Voting Preference
Shares or of any shares ranking on a parity with or junior to
the Voting Preference Shares nor the amendment of the
provisions of the Code of Regulations so as to change the
number of directors of the corporation shall be deemed to
affect adversely the preferences or voting or other
26
rights of the holders of Voting Preference Shares; and
provided further, that if such amendment, alteration or repeal
affects adversely the preferences or voting or other rights of
one or more but not all series of Voting Preference Shares at
the time outstanding, only the affirmative vote or consent of
the holders of at least two-thirds of the number of the shares
at the time outstanding of the series so affected shall be
required;
(5) The authorization, creation or the increase in
the authorized amount of any shares, or any security
convertible into shares, in either case ranking prior to the
Voting Preference Shares; or
(6) The purchase or redemption (for sinking fund
purposes or otherwise) of less than all of the Voting
Preference Shares then outstanding except in accordance with a
stock purchase offer made to all holders of record of Voting
Preference Shares, unless all dividends on all Voting
Preference Shares then outstanding for all previous dividend
periods shall have been declared and paid or funds therefor
set apart and all accrued sinking fund obligations applicable
thereto shall have been complied with.
Section 6. Pre-emptive Rights. No holder of Voting Preference Shares as
such shall have any pre-emptive right to purchase or subscribe for any of the
corporation's shares or other securities of any class, whether now or hereafter
authorized.
Section 7. Definitions. For the purposes of this Division:
(a) Whenever reference is made to shares "ranking prior to the
Voting Preference Shares," such reference shall mean and include all
shares of the corporation in respect of which the rights of the holders
thereof as to the payment of dividends or as to distributions in the
event of a voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the corporation are given preference over the
rights of the holders of Voting Preference Shares;
(b) Whenever reference is made to shares "on a parity with the
Voting Preference Shares," such reference shall mean and include all
Serial Preferred Shares and all other shares of the corporation in
respect of which the rights of the holders thereof as to the payment of
dividends or as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the corporation rank equally (except as to the amounts fixed therefor)
with the rights of the holders of Voting Preference Shares; and
(c) Whenever reference is made to shares "ranking junior to
the Voting Preference Shares," such reference shall mean and include
all shares of the corporation other than those defined under
Subsections (a) and (b) of this Section as shares "ranking prior to" or
"on a parity with" the Voting Preference Shares.
27
DIVISION C
The Common Shares shall have the following express terms:
The Common Shares shall be subject to the express terms of the Serial
Preferred Shares and any series thereof and to the express terms of the Voting
Preference Shares and any series thereof. Each Common Share shall be equal to
every other Common Share and the holders thereof shall be entitled to one vote
for each Common Share on all matters presented. No holder of Common Shares shall
have any pre-emptive right to purchase or subscribe for any of the corporation's
shares or other securities of any class, whether now or hereafter authorized.
IN WITNESS WHEREOF, Peter B. Lewis, President, and David M. Schneider,
Secretary, of The Progressive Corporation, acting for and on its behalf do
hereunto subscribe their names this 19th day of April, 1991.
/s/ Peter B. Lewis
--------------------------------
Peter B. Lewis, President
/s/ David M. Schneider
--------------------------------
David M. Schneider, Secretary
28
CERTIFICATE OF AMENDMENT
TO
AMENDED ARTICLES OF INCORPORATION
OF
THE PROGRESSIVE CORPORATION
PETER B. LEWIS, President, and DAVID M. SCHNEIDER, Secretary, of The
Progressive Corporation, an Ohio corporation for profit with its principal
office in Mayfield Village, Cuyahoga County, Ohio (the "Company"), do hereby
certify that a Written Action Taken Without A Meeting of the Executive Committee
of the Board of Directors of the Company was duly executed by all members of the
Executive Committee of the Board of Directors and that the following resolution
to amend the Amended Articles of Incorporation of the Company was adopted
pursuant to said Written Action Taken Without A Meeting by the Executive
Committee of the Board of Directors of the Company pursuant to the authority of
Section 1701.70(B)(1) and 1701.73(A) of the Ohio Revised Code and Section 1 of
Division A of Article Fourth of said Amended Articles of Incorporation:
RESOLVED, that the Amended Articles of Incorporation of the Company be
and they hereby are amended by adding at the end of Division A of Article FOURTH
thereof a new Section 8 reading as follows:
Section 8. 9 3/8% Serial Preferred Shares, Series A. Of the 20,000,000
authorized Serial Preferred Shares, without par value, 4,600,000 shares are
designated as a series entitled "9 3/8% Serial Preferred Shares, Series A"
(hereinafter called "Series A Shares"). The Series A Shares shall have the
express terms set forth in this Division as being applicable to all Serial
Preferred Shares as a class and, in addition, the following express terms
applicable to all Series A Share as a series of Serial Preferred Shares:
(a) The annual dividend rate of the Series A Shares shall be 9 3/8%
of the liquidation preference of $25.00 per share.
(b) Dividends on Series A Shares shall be payable, if declared,
quarterly on March 31, June 30, September 30 and December 31 of
each year, the first quarterly dividend being payable, if
declared, on June 30, 1991. The dividends payable for each full
quarterly dividend period on each Series A Share shall be
$.5859375.
Dividends for the initial dividend period on the Series A Shares,
or for any period shorter or longer than a full dividend period
on the Series A Shares, shall be computed on the basis of 30-day
months and a 360-day year. The aggregate dividend payable
quarterly to
29
each holder of Series A Shares shall be rounded to the nearest
one cent with $.005 being rounded upward. Each dividend shall be
payable to the holders of record on such record date, not less
than 15 nor more than 30 days preceding the payment date thereof,
as shall be fixed from time to time by the corporation's Board of
Directors.
(c) Dividends on Series A Shares shall be cumulative as follows:
(1) With respect to shares included in the initial issue of
Series A Shares and shares issued any time thereafter up to
and including the record date for the payment of the first
dividend on the initial issue of series A Shares, dividends
shall be cumulative from the date of the initial issue of
Series A Shares; and
(2) With respect to shares issued any time after the aforesaid
record date, dividends shall be cumulative from the dividend
payment date next preceding the date of issue of such
shares, except that if such shares are issued during the
period commencing the day after the record date for the
payment of a dividend on Series A Shares and ending on the
payment date of that dividend, dividends with respect to
such shares shall be cumulative from that dividend payment
date.
(d) Subject to the provisions of Subsection 5(c)(3) of this Division,
the Series A Shares shall be redeemable in the manner provided in
Subsections 3(b)(1) and (2) of this Division as follows:
(1) Except as provided in clause (2) of this Subsection (d), the
Series A Shares may not be redeemed prior to May 31, 1996.
At any time or from time to time on and after May 31, 1996,
the corporation, at its option, may redeem all or any part
of the Series A Shares at a redemption price of $25.00 per
share plus, in each case, an amount equal to all dividends
accrued and unpaid thereon to the redemption date.
(2) Prior to May 31, 1996, the corporation, at its option, may
redeem all, but not less than all, of the outstanding Series
A Shares if the holders of such shares shall be entitled to
vote upon or consent to any amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any of the
provisions of the Amended Articles of Incorporation or of
the Code of Regulations of the corporation which affects
30
adversely the preferences or voting or other rights of the
holders of Series A Shares, as specified under Subsection
5(c)(1) of this Division, and all of the following
conditions have been satisfied: (a) the corporation shall
have requested the vote or consent of the holders of the
Series A Shares to such amendment, alteration or repeal,
stating in such request that failing the requisite favorable
vote or consent the corporation will have the option to
redeem such shares, (b0 the corporation shall not have
received the requisite favorable vote or consent within 60
days after making such request (which shall be deemed to
have been made upon the mailing of the notice of any meeting
of holders of Series A Shares to vote upon such approval or
grant such consent) and (c) such amendment, alteration or
repeal, whether in connection with a merger, consolidation
or otherwise, shall be effected on the date fixed for such
redemption, which date shall be no more than one year after
such request is made. Any such redemption shall be on notice
as aforesaid at a redemption price of 425.00 per Series A
Share plus an amount equal to all dividends accrued and
unpaid thereon to the redemption date.
(e) The amount payable per Series A Share in the event of any
voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the corporation shall be $25.00, plus an amount
equal to all dividends accrued and unpaid thereon to the date of
payment.
IN WITNESS WHEREOF, Peter B. Lewis, President, and David M. Schneider,
Secretary, of The Progressive Corporation, acting for and on its behalf do
hereunto subscribe their names this fourteenth day of May, 1991.
/s/ Peter B. Lewis
--------------------------------
Peter B. Lewis, President
/s/ David M. Schneider
--------------------------------
David M. Schneider, Secretary
31
CERTIFICATE OF AMENDMENT
TO
AMENDED ARTICLES OF INCORPORATION
OF
THE PROGRESSIVE CORPORATION
PETER B. LEWIS, President, and DAVID M. SCHNEIDER, Secretary, of The Progressive
Corporation, an Ohio corporation for profit with its principal office at
Mayfield Village, Cuyahoga County, Ohio (the "Company"), do hereby certify that
a meeting of the Shareholders of the Company was duly called and held on April
23, 1993 at which meeting a quorum of the shareholders was present in person, or
by proxy, and by the affirmative vote of the holders of shares entitling them to
exercise a majority of the voting power of the Company on a proposal to amend
the Company's Amended Articles of Incorporation, the following resolution was
adopted:
RESOLVED, that the first paragraph of Article FOURTH of the Company's Amended
Articles of Incorporation, which precedes DIVISION A thereof be, and the same
is, hereby amended and restated in its entirety to provide as follows:
FOURTH. The authorized number of shares of the corporation is
225,000,000, consisting of 20,000,000 Serial Preferred Shares, without
par value (hereinafter called "Serial Preferred Shares"), 5,000,000
Voting Preference Shares, without par value (hereinafter called "Voting
Preference Shares"), and 200,000 Common Shares, $1.00 par value
(hereinafter called "Common Shares).
IN WITNESS WHEREOF, Peter B. Lewis, President, and David M. Schneider, Secretary
of The Progressive Corporation, acting for and on its behalf do hereunto
subscribe their names this 23rd day of April, 1993.
/s/ Peter B. Lewis
--------------------------------
Peter B. Lewis, President
/s/ David M. Schneider
--------------------------------
David M. Schneider, Secretary
32
CERTIFICATE OF AMENDMENT
TO
AMENDED ARTICLES OF INCORPORATION
OF
THE PROGRESSIVE CORPORATION
DAVID M. SCHNEIDER, Secretary of the Progressive Corporation, an Ohio
corporation for profit with its principal office at Mayfield Village, Cuyahoga
County, Ohio (the "Company"), does hereby certify that a meeting of the
Shareholders of the Company was duly called and held on April 24, 1998, at which
meeting a quorum of the Shareholders was present in person or by proxy, and by
the affirmative vote of the holders of shares entitling them to exercise a
majority of the voting power of the Company on a proposal to amend the Company's
Amended Articles of Incorporation, the following resolution was adopted:
RESOLVED, that the first paragraph of Article FOURTH of the Company's Amended
Articles of Incorporation, which precedes DIVISION A thereof be, and the same
is, hereby amended and restated in its entirety to provide as follows:
FOURTH. The authorized number of shares of the corporation is
325,000,000, consisting of 20,000,000 Serial Preferred Shares, without
par value (hereinafter called "Serial Preferred Shares"), 5,000,000
Voting Preference Shares, without par value (hereinafter called "Voting
Preference Shares"), and 300,000,000 Common Shares, $1.00 par value
(hereinafter called "Common Shares").
IN WITNESS WHEREOF, David M. Schneider, Secretary of The Progressive
Corporation, acting for and on behalf of said corporation, does hereunto
subscribe his name this 24th day of April, 1998.
/s/ David M. Schneider
--------------------------------
David M. Schneider, Secretary