0000109757-11-000008.txt : 20111121 0000109757-11-000008.hdr.sgml : 20111121 20111118184659 ACCESSION NUMBER: 0000109757-11-000008 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20111117 ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20111121 DATE AS OF CHANGE: 20111118 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COMMERCE GROUP CORP /WI/ CENTRAL INDEX KEY: 0000109757 STANDARD INDUSTRIAL CLASSIFICATION: GOLD & SILVER ORES [1040] IRS NUMBER: 391942961 STATE OF INCORPORATION: WI FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-07375 FILM NUMBER: 111217262 BUSINESS ADDRESS: STREET 1: 6001 N 91ST ST CITY: MILWAUKEE STATE: WI ZIP: 53225-1795 BUSINESS PHONE: 4144625310 MAIL ADDRESS: STREET 1: 6001 N 91ST ST CITY: MILWAUKEE STATE: WI ZIP: 53225 8-K 1 frm8k111811.txt FORM 8-K DATED NOVEMBER 18, 2011 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) November 17, 2011 COMMERCE GROUP CORP. --------------------------------------------------------------- (Exact name of registrant as specified in its charter) Wisconsin 1-7375 39-6050862 -------------------------------------------------------------------------- (State or other (Commission File Number) (IRS Employer jurisdiction of Identification No.) of incorporation) N8 W22577 Johnson Drive, Waukesha, Wisconsin 53186 ------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (414) 462-5310 fax: (262) 522-8509 6001 North 91st Street, Milwaukee, Wisconsin 53225-1795 ------------------------------------------------------------------------- (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: ____ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) ____ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) ____ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) ____ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) 1 ITEM 8.01 OTHER EVENTS. On November 17, 2011, in response to the International Centre for Settlement of Investment Disputes' ("ICSID") request for an advance of U.S. $150,000.00 as a deposit against the cost of the annulment proceedings in the case between the Company and the Republic of El Salvador, the Company's attorneys, Machulak, Robertson & Sodos, S.C. submitted a letter to the Secretary at ICSID for distribution to the Ad Hoc Committee members. Copies of the correspondence sent to ICSID are attached to this Form 8-K as Exhibits 99.1 and 99.2. For additional information about the Company's claims against the Government of El Salvador, reference is made to the Company's 8-Ks that were filed with the Securities and Exchange Commission on March 18, 2009, July 2, 2009, July 2, 2010, August 19, 2010, September 17, 2010, March 15, 2011 and July 14, 2011. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS. (d) Exhibits Number Description ------ ----------- 99.1 Letter from Machulak, Robertson & Sodos, S.C. to the Secretary of the Ad Hoc Committee at ICSID dated November 17, 2011. 99.2 Letter from Machulak, Robertson & Sodos, S.C. to the Ministries in the Republic of El Salvador dated March 31, 2011, as is referenced in Exhibit 99.1. FORWARD-LOOKING STATEMENTS Certain statements in this release, and other written or oral statements made by the Company, including the use of the words "expect," "anticipate," "estimate," "project," "forecast," "outlook," "target," "objective," "plan," "goal," "pursue," "on track," and similar expressions, are "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These forward-looking statements are subject to known and unknown risks, uncertainties and other factors that may cause actual results, performance, or achievements of the Company to be different from those expressed or implied. The Company assumes no obligation and does not intend to update these forward-looking statements. Among the important factors that could cause actual results to differ materially from those indicated by such forward-looking statements include, without limitation: competitive and general economic conditions, adverse effects of litigation, the timely development and acceptance of services, significant changes in the competitive environment, the failure to generate or the loss of significant numbers of customers, the loss of senior management, increased government regulation or the Company's failure to integrate its acquired companies to achieve the synergies and efficiencies described in the "Management's Discussion and Analysis" section of the Company's Form 10-K and other reports and filings with the Securities and Exchange Commission (SEC), which may be revised or supplemented in subsequent reports on SEC Forms 10-Q and 8-K. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. COMMERCE GROUP CORP. (Registrant) /s/ Edward A. Machulak Date: November 18, 2011 _______________________________________ By: Edward A. Machulak, President 3 EX-99 2 ex991.txt EXHIBIT 99.1 EXHIBIT 99.1 ------------ MACHULAK, ROBERTSON & SODOS, S.C. A Limited Liability Service Corporation MILWAUKEE OFFICE BROOKFIELD OFFICE ---------------- ----------------- JOHN E. MACHULAK - Court Commissioner Of Counsel SUSAN R. ROBERTSON SIDNEY SODOS EUGENE BYKHOVSKY SIDNEY SODOS, S.C. HARVEY HELD 1733 NORTH FARWELL AVENUE TELEPHONE: (262) 785-5500 MILWAUKEE, WISCONSIN 53202 FAX: (262) 785-1100 TELEPHONE: (414) 271-0760 FAX: (414) 271-6363 November 17, 2011 Via Email --------- Professor Emmanuel Gaillard, President Professor Michael C. Pryles Professor Christoph Schreuer c/o Mr. Marco Tulio Montanes-Rumayor Secretary of the Ad Hoc Committee ICSID 1818 H Street, NW MSN U3-301 Washington, D.C. 20433 Re: Commerce Group Corp. and San Sebastian Gold Mines, Inc. v. Republic of El Salvador ICSID Case No. ARB/09/17 Dear Sirs: In response to Mr. Montanes-Rumayor's letter of October 24, 2011, regarding the request for an advance of U.S. $150,000 for expenses in this case, I am writing to you on behalf of Commerce Group Corp. and San Sebastian Gold Mines, Inc. ("Commerce" and "San Sebastian"). Mr. Montanes-Rumayor's initial request was made on August 17, 2011. While Commerce and San Sebastian are actively engaged in efforts to satisfy this request, with great regret I am advising you that they are unable to pay the requested advance at this time. I have had several telephone conversations with Mr. Montanes-Rumayor regarding this matter and have tried to keep him abreast of developments. However, I want to make certain that the ad hoc committee is also aware of the current situation, which I hope to fairly summarize in this letter. Commerce and San Sebastian filed their submission for an annulment on July 11, 2011. Both before and afterwards, they have been continually engaged in efforts to obtain the resources required to pursue an annulment of an award that they believe is very unjust. Historically, Commerce and San Sebastian were engaged in exploration and production of gold and other precious metals in the country of El Salvador since 1968, interrupted by El Salvador's civil war Professor Emmanuel Gaillard, President Professor Michael C. Pryles Professor Christoph Schreuer November 17, 2011 Page 2 between 1978 and 1987. In 2006 the Republic of El Salvador declared a country-wide moratorium on precious metal mining and revoked the companies' permits for both production and exploration. As a result of the moratorium, Commerce and San Sebastian were unable to obtain revenue from the production of gold or to develop their business. After efforts to resolve this situation with the Republic of El Salvador failed, on July 2, 2009, Commerce and San Sebastian filed a Notice of Arbitration under CAFTA-DR and the Foreign Investment Law of El Salvador. The expense of these proceedings strained the resources of Commerce and San Sebastian, but they persisted largely with the help of investors. On March 14, 2011, the Arbitration Tribunal dismissed their notice of arbitration on jurisdictional grounds, which are now being challenged. Afterward, Commerce and San Sebastian sought to muster their resources and move forward. However, a number of events have not only been financially damaging, but also, have been very discouraging to investors. On March 31, 2011, I sent the enclosed letter to the indicated ministries in the Republic of El Salvador. One object of writing was to obtain the $55,052.95 surplus from the payments that Commerce and San Sebastian had on deposit for their IVA tax plus the security deposit in the amount of $14,723.07 that Commerce and San Sebastian had on property owned by the government and leased by Commerce and San Sebastian. Commerce and San Sebastian never received the requested deposits from the Republic of El Salvador, nor did I receive a response to my letter of March 31, 2011. Commerce and San Sebastian had substantial real and personal property in the Republic of El Salvador. In the last few weeks, Commerce and San Sebastian were advised that their mining equipment at the San Sebastian Gold Mine site was stolen and sold for scrap. Commerce and San Sebastian have information that this equipment, which cost well over $200,000 (not including accessories and the cost of transporting and installing it at the San Sebastian Gold Mine) was sold for $50,000 or less. This was reported to the National Civil Police of La Union in the Republic of El Salvador, and apparently, an investigation was conducted on November 11, 2011. Before this occurred, threats were made to the companies' representatives who reside in the Republic of El Salvador and who were trying to do their best to monitor the situation. They have been intimidated, called into question for remaining loyal to Commerce and San Sebastian, and have even been prevented from entering the mine site. Commerce and San Sebastian have also learned that in the last few weeks, there has been aggressive, unauthorized mining at its San Sebastian site. Commerce and San Sebastian have reports that as many as 500 local individuals moved equipment to the site to conduct an unauthorized mining operation. The police have been contacted on this. However, from 2006 forward, there has been continuous unauthorized mining at the San Sebastian, while the Professor Emmanuel Gaillard, President Professor Michael C. Pryles Professor Christoph Schreuer November 17, 2011 Page 3 moratorium on mining precluded Commerce and San Sebastian from conducting any mining activity. I realize justice does not come without a cost, but respectfully submit that Commerce and San Sebastian have been and are continuing to do their best to satisfy the financial requirements of the ICSID. Commerce and San Sebastian would certainly authorize the Republic of El Salvador to send to the ICSID the $55,052.95 surplus and the $14,723.07 described above. Commerce and San Sebastian understand that under the rules if they cannot make the advance payment required by the ICSID, these proceedings can be suspended. If the Committee suspends these proceedings, Commerce and San Sebastian pledge that they will continue to do whatever is possible to muster the resources needed to put these proceedings back on track. However, as matters stand, Commerce and San Sebastian are unable to wire the requested payment. Thank you for your kind consideration. Respectfully yours, /s/ John E. Machulak John E. Machulak Milwaukee Office ---------------- JEM:emk enclosure cc: Mr. Luis Parada Derek Smith, Esq. EX-99 3 ex992.txt EXHIBIT 99.2 EXHIBIT 99.2 ------------ MACHULAK, ROBERTSON & SODOS, S.C. A Limited Liability Service Corporation MILWAUKEE OFFICE BROOKFIELD OFFICE ---------------- ----------------- JOHN E. MACHULAK - Court Commissioner SIDNEY SODOS SUSAN R. ROBERTSON TELEPHONE: (262) 785-5500 EUGENE BYKHOVSKY FAX: (262) 785-1100 HARVEY HELD 1733 NORTH FARWELL AVENUE MILWAUKEE, WISCONSIN 53202 TELEPHONE: (414) 271-0760 FAX: (414) 271-6363 March 31, 2011 Dr. Hector Miguel Antonio Dada Hirezi Ministerio de Hacienda Ministro de Economia Boulevard de los Heroes No. 1231, Alameda Juan Pablo II y Calle Guadalupe Edificio Ministerio de Hacienda, Edificio C1-C2, Centro de Gobierno San Salvador, El Salvador, C. A. San Salvador, El Salvador, C. A. csantos@minec.gob.sv Ing. Carlos Duarte Centro de Servicios al Contribuyente Director de Hidrocarburos y Minas Diagonal Centroamerica y Av. Alvarado Alameda Juan Pablo II y Calle Guadalupe # 4 contiguo a Edificio Tres Torres Edificio C1-C2, Centro de Gobierno (ex-Bolerama Jardin) San Salvador, El Salvador, C. A. San Salvador, El Salvador, C. A. cduarte@minec.gob.sv Ministerio de Medio Ambiente y Centro Nacional de Registro Recursos Naturales Registro de Comercio y Registro de Kilometro 5 1/2 Carretera a Santa Tecla Propiedad Intelectual Calle y Colonia Las Mercedes, 1a Calle Poniente y 43 Av. Norte Edificio MARN (anexo al edificio ISTA) #2310, No. 2 San Salvador, El Salvador, C.A. San Salvador, El Salvador, C. A. medioambiente@marn.gob.sv RE: Commerce Group Corp./San Sebastian Gold Mines, Inc. To The Honorable Ministers and Agencies: The law firm of Machulak, Robertson & Sodos, S.C. represents Commerce Group Corp. and San Sebastian Gold Mines, Inc. As you are no doubt aware, from 1968 forward, Commerce and San Sebastian developed a mining business in the country of El Salvador, only interrupted by El Salvador's civil war. They invested money and resources and over the years, provided thousands of jobs, both labor and professional, to the people of El Salvador. In 2006, the government of El Salvador declared an end to mining in the country of El Salvador, and made it impossible for Commerce and San Sebastian to generate any revenue. Commerce and San Sebastian challenged the government's actions before the International Centre for Settlement of Investment Disputes. On March 14, 2011, the tribunal assigned to Commerce and San Sebastian's case declared they had no jurisdiction over Commerce and San Sebastian's claims. To The Honorable Ministers March 31, 2011 Page Two Now, for the foreseeable future, Commerce and San Sebastian have no prospect of generating revenue from their mining operations. Over the past five years, the companies have continued to pay hundreds of thousands of dollars in wages and social benefits for their El Salvadoran employees, government obligations, and other costs of maintaining their business in El Salvador while being cut off from any income. They did this not only on the expectation that they would receive justice in their legal action, but also in the hope that the government of El Salvador would change its course with respect to the mining industry. That has not happened. Now Commerce and San Sebastian are faced with the prospect of having to cut their expenses in El Salvador. This is unfortunate for the many employees that the companies had employed over the years and in our opinion, unfortunate for the San Sebastian community. Nonetheless, Commerce and San Sebastian have to be realistic. Earlier today, Commerce and San Sebastian laid off most of their employees in El Salvador. Laboratory equipment, samples from past exploration, and chemical supplies are all now in storage in El Salvador. The chemicals are located in a locked metal shipping container secured in place by cement block knee wall. Commerce and San Sebastian will not be able to continue to employ guards for this property, but unless there is theft or vandalism, it is expected that these items will remain intact for hopefully, a day when mining can resume. Commerce and San Sebastian wish to alert the government that they have received threats to their employees and property. Over the years, Commerce and San Sebastian have generated a $55,052.95 surplus in the payment of their IVA tax plus a security deposit in the amount of $14,723.07 for their lease of property owned by the government (Corsain) in San Cristobal. By this letter I am respectfully requesting that the government of El Salvador refund to Commerce and San Sebastian both the $55,052.95 IVA surplus and the $14,723.07 security deposit. This money will be used for among other things, paying severance wages to employees and we therefore ask that this request be expedited. It is my understanding that the Ministerio de Hacienda must take action to process the refund of our IVA tax and that Corsain must take action to refund the security deposit. If there is any reason why this request cannot be expeditiously processed, I would appreciate knowing that. Respectfully yours, /s/ John E. Machulak John E. Machulak Milwaukee Office JEM:emk cc: See attached list cc: El Salvador --- ----------- Presidente Mauricio Funes Ministerio de Relaciones Exteriores de El Salvador Ministerio de Justicia y Seguridad Publica Ministerio de la Defensa Nacional Corporacion Salvadorena de Inversiones Embajada de Los Estados Unidos Lic. Pedro Valle Lic. Luis Alfonso Valle Deras cc: United States --- ------------- President Barack Obama Embassy of El Salvador United States Department of Commerce Office of Business Liaison U.S. Senator Herb Kohl U.S. Senator Ron Johnson U.S. Representative F. James Sensenbrenner U.S. Representative Gwen Moore Wisconsin State Senator Alberta Darling Commerce Group Corp.