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
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(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification No.)
of incorporation)
N8 W22577 Johnson Drive, Waukesha, Wisconsin 53186
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(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.