-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UdRSAFhCgtA9OzUhREJtVBj6lcv0GhNdKBvM4rodg7h93LyPexVdsF6ZgLqEuLM0 isTmFJ+STGXAQZq8jRxyqw== 0000910647-03-000192.txt : 20030513 0000910647-03-000192.hdr.sgml : 20030513 20030513104806 ACCESSION NUMBER: 0000910647-03-000192 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20030331 FILED AS OF DATE: 20030513 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COMMERCE GROUP INC /MA CENTRAL INDEX KEY: 0000811612 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 042599931 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-13672 FILM NUMBER: 03694264 BUSINESS ADDRESS: STREET 1: 211 MAIN ST CITY: WEBSTER STATE: MA ZIP: 01570 BUSINESS PHONE: 5089439000 MAIL ADDRESS: STREET 1: 211 MAIN STREET STREET 2: 211 MAIN STREET CITY: WEBSTER STATE: MA ZIP: 01570 10-Q 1 cgi-q1.txt BODY OF FORM 10-Q ============================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q [X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the quarterly period ended March 31, 2003 -------------- OR [ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Commission File Number 001-13672 THE COMMERCE GROUP, INC. (Exact name of registrant as specified in its charter) Massachusetts 04-2599931 (State or other jurisdiction (IRS Employer of Incorporation) Identification No.) 211 Main Street, Webster, Massachusetts 01570 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (508) 943-9000 Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No___ Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act). Yes X No___ As of April 30, 2003, the number of shares outstanding of the Registrant's common stock (excluding Treasury Shares) was 31,879,835 1 The Commerce Group, Inc. Table of Contents Page No. Part I - Financial Information Item 1. Financial Statements Consolidated Balance Sheets at March 31, 2003 (Unaudited) and December 31, 2002 3 Consolidated Statements of Earnings and Comprehensive Income for the Three Months Ended March 31, 2003 and 2002 (Unaudited) 4 Consolidated Statements of Cash Flows for the Three Months Ended March 31, 2003 and 2002 (Unaudited) 5 Consolidated Statements of Cash Flows - Reconciliation of Net Earnings to Net Cash Provided by Operating Activities for the Three Months Ended March 31, 2003 and 2002 (Unaudited) 6 Notes to Unaudited Consolidated Financial Statements 7 Item 2. Management's Discussion and Analysis General 12 Results of Operations - Three Months Ended March 31, 2003 13 Liquidity and Capital Resources 17 Forward-Looking Statements 19 Item 3. Quantitative and Qualitative Disclosures about Market Risk 20 Item 4. Controls and Procedures 20 Part II - Other Information Item 1. Legal Proceedings 21 Item 2. Changes in Securities and Use of Proceeds 21 Item 3. Defaults Upon Senior Securities 21 Item 4. Submission of Matters to a Vote by Security Holders 21 Item 5. Other Information 21 Item 6. Exhibits and Reports on Form 8-K 23 Signature 23 Certifications 24 2 Part I - Financial Information Item 1. Financial Statements THE COMMERCE GROUP, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (Thousands of Dollars)
March 31, December 31, 2003 2002 --------- ------------ (Unaudited) ASSETS Investments: Fixed maturities, at market (cost: $792,829 in 2003 and $666,910 in 2002) $ 808,990 $ 683,811 Preferred stocks, at market (cost: $293,305 in 2003 and $301,141 in 2002) 308,678 305,057 Common stocks, at market (cost: $82,958 in 2003 and $81,602 in 2002) 95,780 99,818 Preferred stock mutual funds, at equity (cost: $292,505 in 2003 and $294,192 in 2002) 274,497 270,616 Mortgage loans on real estate and collateral notes receivable (less allowance for possible loan losses of $402 in 2003 and $418 in 2002) 22,850 26,754 Cash and cash equivalents 130,949 169,946 Other investments (cost: $37,765 in 2003 and $35,015 in 2002) 23,230 21,068 -------------------------- Total investments 1,664,974 1,577,070 Accrued investment income 14,203 13,959 Premiums receivable (less allowance for doubtful receivables of $1,661 in 2003 and in 2002) 368,989 297,610 Deferred policy acquisition costs 152,554 138,241 Property and equipment, net of accumulated depreciation 52,015 51,509 Residual market receivable 169,540 164,476 Due from reinsurers 102,658 98,403 Current income taxes - 662 Deferred income taxes 29,010 30,728 Receivable for investments sold 5,053 366 Non-compete agreement, net of accumulated amortization 2,042 2,129 Other assets 11,457 7,535 -------------------------- Total assets $2,572,495 $2,382,688 ========================== LIABILITIES AND STOCKHOLDERS' EQUITY Liabilities Unpaid losses and loss adjustment expenses $ 857,162 $ 815,626 Unearned premiums 778,129 687,148 Current income taxes 1,749 - Deferred income 7,269 8,421 Contingent commissions accrued 28,035 32,550 Payable for securities purchased 63,075 - Other liabilities and accrued expenses 44,465 44,785 -------------------------- Total liabilities 1,779,884 1,588,530 -------------------------- Minority interest 4,123 4,106 -------------------------- Stockholders' equity Preferred stock, authorized 5,000,000 shares at $1.00 par value; none issued in 2003 and 2002 - - Common stock, authorized 100,000,000 shares at $.50 par value; 38,281,627 shares issued in 2003 and in 2002 19,141 19,141 Paid-in capital 39,570 39,570 Net accumulated other comprehensive income, net of income taxes of $15,492 in 2003 and $13,603 in 2002 28,769 25,264 Retained earnings 880,297 877,308 -------------------------- 967,777 961,283 Treasury stock 6,401,792 shares in 2003 and 6,165,392 in 2002 (179,289) (171,231) -------------------------- Total stockholders' equity 788,488 790,052 -------------------------- Total liabilities, minority interest and stockholders' equity $2,572,495 $2,382,688 ==========================
The accompanying notes are an integral part of these consolidated financial statements. 3 THE COMMERCE GROUP, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF EARNINGS Three Months Ended March 31, 2003 and 2002 (Thousands of Dollars Except Per Share Data) (Unaudited)
Three Months Ended March 31, --------------------------- 2003 2002 ----------- ----------- (Restated) Revenues Direct premiums written $ 448,794 $ 383,717 Assumed premiums 27,983 24,155 Ceded premiums (49,742) (40,331) --------------------------- Net premiums written 427,035 367,541 Increase in unearned premiums (89,048) (86,777) --------------------------- Earned premiums 337,987 280,764 Net investment income 22,704 22,904 Premium finance and service fees 6,330 4,932 Net realized investment losses (5,844) (3,447) Other income - 7,000 --------------------------- Total revenues 361,177 312,153 --------------------------- Expenses Losses and loss adjustment expenses 274,394 216,576 Policy acquisition costs 69,502 65,019 --------------------------- Total expenses 343,896 281,595 --------------------------- Earnings before income taxes, change in accounting principle and minority interest 17,281 30,558 Income tax 4,405 7,835 Change in accounting principle net of tax - 11,237 --------------------------- Net earnings before minority interest 12,876 33,960 Minority interest in net loss of subsidiary 44 10 --------------------------- NET EARNINGS $ 12,920 $ 33,970 =========================== COMPREHENSIVE INCOME $ 16,425 $ 38,094 =========================== NET EARNINGS PER COMMON SHARE: BASIC. $ 0.40 $ 1.03 =========================== DILUTED $ 0.40 $ 1.02 =========================== CASH DIVIDENDS PAID PER COMMON SHARE $ 0.31 $ 0.30 =========================== WEIGHTED AVERAGE NUMBER OF COMMON SHARES OUTSTANDING: BASIC 31,977,554 33,083,119 ========================== DILUTED 32,161,730 33,372,501 ==========================
The accompanying notes are an integral part of these consolidated financial statements. 4 THE COMMERCE GROUP, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS Three Months Ended March 31, 2003 and 2002 (Thousands of Dollars) (Unaudited)
2003 2002 --------- ---------- (Restated) Cash flows from operating activities: Premiums collected $ 364,884 $ 308,042 Net investment income received 22,529 22,493 Premium finance and service fees received 6,330 4,932 Losses and loss adjustment expenses paid (252,719) (205,855) Policy acquisition costs paid (89,062) (79,989) Federal income tax payments (2,165) (3,524) Other income - 7,000 ----------------------- Net cash provided by operating activities 49,797 53,099 ----------------------- Cash flows from investing activities: Proceeds from maturity of fixed maturities 32,407 10,310 Proceeds from sale of fixed maturities 47,685 26,086 Proceeds from sale of equity securities 9,124 18,990 Proceeds from sale of preferred stock mutual funds 1,954 229 Payments received on mortgage loans and collateral notes receivable 4,120 3,037 Purchase of fixed maturities (148,834) (73,560) Purchase of equity securities (12,605) (11,809) Purchase of preferred stock mutual funds - (1,571) Purchase of other investments (2,750) (1,416) Mortgage loans and collateral notes originated (200) (243) Purchase of property and equipment (1,845) (2,890) Other investing activities 139 43 ----------------------- Net cash used in investing activities (70,805) (32,794) ----------------------- Cash flows from financing activities: Dividends paid to stockholders (9,931) (9,927) Purchase of treasury stock (8,058) (6,789) ----------------------- Net cash used in financing activities (17,989) (16,716) ----------------------- Increase (decrease) in cash and cash equivalents (38,997) 3,589 Cash and cash equivalents at beginning of period 169,946 148,630 ----------------------- Cash and cash equivalents at the end of period $ 130,949 $ 152,219 =======================
The accompanying notes are an integral part of these consolidated financial statements. 5 THE COMMERCE GROUP, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS Reconciliation of Net Earnings to Net Cash Provided by Operating Activities Three Months Ended March 31, 2003 and 2002 (Thousands of Dollars) (Unaudited)
2003 2002 -------- ---------- (Restated) Cash flows from operating activities: Net earnings $ 12,920 $ 35,416 Adjustments to reconcile net earnings to net cash provided by operating activities: Premiums receivable (71,379) (63,679) Deferred policy acquisition costs (14,313) (13,605) Residual market receivable (5,064) (5,294) Due to/from reinsurers (4,255) 2,352 Losses and loss adjustment expenses 41,536 15,801 Unearned premiums 90,981 88,560 Current income taxes 2,411 7,121 Deferred income taxes (171) (2,034) Deferred income (1,152) 476 Contingent commissions (4,515) 500 Other assets, liabilities and accrued expenses (4,155) (9,552) Net realized investment losses 5,844 3,447 Change in accounting principle - (11,237) Minority interest 17 4,169 Other - net 1,092 658 ---------------------- Net cash provided by operating activities $ 49,797 $ 53,099 ======================
The accompanying notes are an integral part of these consolidated financial statements. 6 The Commerce Group, Inc. and Subsidiaries NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS (Thousands of Dollars Except Per Share Data) 1. The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States ("GAAP") for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by GAAP for complete financial statements. In the opinion of manage-ment, all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation have been included. Certain previously reported 2002 account balances have been reclassified to conform to the current period's presentation. Results for the three-month period ended March 31, 2003 are not necessarily indicative of the results that may be expected for the year ending December 31, 2003. The balance sheet at December 31, 2002 has been derived from the audited financial statements at that date but does not include all of the information and footnotes required by GAAP for complete financial statements. For further information, refer to the consolidated financial statements and footnotes thereto included in the Company's annual report on Form 10-K for the year ended December 31, 2002. 2. This Form 10-Q contains some statements that are not historical facts and are considered "forward-looking statements" as defined in the Private Securities Litigation Reform Act of 1995. Such forward-looking statements involve opinions, assumptions and predictions, and no assurance can be given that the future results will be achieved since events or results may differ materially as a result of risks facing the Company. These include, but are not limited to, those risks and uncertainties in our business, some of which are beyond the control of the Company, that are described in the Company's Forms 10-K and 10-Q, Schedules 13D and 13G, and other documents filed with the SEC, including the possibility of adverse catastrophe experience and severe weather, adverse trends in claim severity or frequency, adverse state and federal regulation and legislation, adverse state judicial decisions, litigation risks, interest rate risk, rate making decisions for private passenger automobile policies in Massachusetts, potential rate filings, adverse impacts related to consolidation activities, heightened competition, as well as economic, market or regulatory conditions and risks associated with entry into new markets and diversification. 3. Legal Proceedings - As is common with property and casualty insurance companies, the Company is a defendant in various legal actions arising from the normal course of its business, including claims based on Massachusetts Chapters 176D and 93A. Similar provisions exist in other states where the Company does business. These proceedings are considered to be ordinary to operations or without foundation in fact. Management is of the opinion that these actions will not have a material adverse effect on the consolidated financial position of the Company. The Company previously disclosed that a purported class action lawsuit was pending in Massachusetts state court against The Commerce Insurance Company ("Commerce"). The lawsuit, titled "Elena Given, individually and as a representative of all persons similarly situated v. The Commerce Insurance Company," alleges damages as a result of the alleged inherent diminished value to vehicles that are involved in accidents. In April 2002, the trial judge in that case entered partial summary judgment for the plaintiff on the issue of whether the Massachusetts automobile policy covers her claim, ruling that the plaintiff would be entitled to reimbursement under the policy if the plaintiff were able both to prove that her vehicle suffered "inherent diminished value" in the accident and to quantify the amount of such diminution in value. Subsequently the Massachusetts Division of Insurance issued an Advisory ruling in which it stated, among other things, its position that the policy does not cover claims for "inherent diminished value." In July of 2002, the trial judge stayed 7 The Commerce Group, Inc. and Subsidiaries NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS (Thousands of Dollars Except Per Share Data) (Continued) the trial and granted the Company's motion to have the appellate court review the issue of whether the Massachusetts automobile policy provides coverage for inherent diminished value. During the third quarter of 2002, the Company applied for direct appellate review of this issue by the Supreme Judicial Court of Massachusetts ("SJC"), and this application was granted. Another Superior Court judge in Massachusetts ruled, in a similar case brought by the same plaintiff counsel against another insurer, that claims for diminution of value are not covered by the Massachusetts automobile insurance policy. The Company's and the other insurer's cases were paired and oral arguments were heard at the SJC on March 4, 2003. A decision is expected within 120 days of the oral argument. If the SJC agrees with the Given trial judge's interpretation of the Massachusetts personal automobile insurance policy, then the case will be remanded to the trial court, where the Company would vigorously oppose class certification. No reserve has been established for the potential liability in connection with this case because the Company is unable to estimate the potential exposure of this purported class action lawsuit. However, if there is a final decision certifying that a relatively large class of the Company's policyholders is entitled to recover damages based upon the inherent diminished value theory, the Company may have to increase materially its loss and loss adjustment expense reserves as a result. Other insurance companies face similar suits in cases outside of Massachusetts. 4. Disclosure of Statement of Financial Accounting Standards No. 130 - Reporting Comprehensive Income:
Three Months Ended March 31, 2003 2002 ------ --------- (Restated) Net earnings $12,920 $33,970 ------------------- Other comprehensive income (loss), net of taxes (benefits): Change in unrealized gains, net of income taxes of $2,778 in 2003 and $2,090 in 2002 5,160 3,883 Reclassification adjustment, net of income taxes (benefits) of ($891) in 2003 and $130 in 2002 (1,655) 241 ------------------- Other comprehensive income 3,505 4,124 ------------------- Comprehensive income $16,425 $38,094 ===================
5. Disclosure of Statement of Financial Accounting Standards No. 131 - Disclosures about Segments of an Enterprise and Related Information:
Earnings (losses) Before Income Taxes Change in Accounting Principle and Identifiable Revenue Minority Interest Assets ------- -------------------- ------------ Three Months Ended March 31, 2003 Property and casualty insurance Massachusetts $311,549 $16,521 $2,249,912 Other than Massachusetts 49,148 (955) 290,072 Real estate and commercial lending 479 479 23,703 Corporate and other 1 1,236 8,808 ----------------------------------------------- Consolidated $361,177 $17,281 $2,572,495 =============================================== Three Months Ended March 31, 2002 (Restated) Property and casualty insurance Massachusetts $273,857 $34,486 $1,987,318 Other than Massachusetts 37,647 (1,535) 254,701 Real estate and commercial lending 649 649 37,506 Corporate and other - (3,042) 9,248 ----------------------------------------------- Consolidated $312,153 $30,558 $2,288,773 ===============================================
8 The Commerce Group, Inc. and Subsidiaries NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS (Thousands of Dollars Except Per Share Data) (Continued) 6. Liabilities for unpaid losses and loss adjustment expenses at March 31, 2003 and December 31, 2002 consist of:
March 31, December 31, 2003 2002 --------- ------------ Net voluntary unpaid losses and LAE $675,218 $650,892 Voluntary salvage and subrogation recoverable (90,689) (88,108) Assumed unpaid losses and LAE from CAR 146,697 138,355 Assumed salvage and subrogation recoverable from CAR (22,790) (22,790) ----------------------- Total voluntary and assumed unpaid losses and LAE 708,436 678,349 Adjustment for ceded unpaid losses and LAE 157,726 146,277 Adjustment for ceded salvage and subrogation recoverable (9,000) (9,000) ----------------------- Total unpaid losses and LAE $857,162 $815,626 =======================
7. SFAS No. 113 "Accounting and Reporting for Reinsurance of Short-Duration and Long-Duration Contracts" effect: In accordance with SFAS No. 113, included in the unpaid losses and loss adjustment expenses and the unearned premiums reported numbers are amounts for ceded reinsurance recoverable. At March 31, 2003 and December 31, 2002, respectively, $148,726 and $137,277 were included in the unpaid losses and loss adjustment expense amounts. At March 31, 2003 and December 31, 2002, respectively, $101,733 and $99,802 were included in the unearned premium liability amounts. 8. Disclosure of Supplemental Information: Additional supplemental financial information is available on the Company's website at http://www.commerceinsurance.com, under the "Links" section of the "News & Investors" tab. 9. Earnings Per Share: Net earnings per basic common share are computed by dividing net earnings by the weighted average number of basic common shares outstanding. The weighted average number of basic common shares outstanding for the three months ended March 31, 2003 and 2002 were 31,977,554 and 33,083,119, respectively. Weighted average number of basic common shares outstanding is determined by taking the average of the following calculation for a specified period of time: The daily amount of (1) the total issued outstanding common shares minus (2) the total Treasury Stock purchased. Earnings per diluted common share are based on the weighted average number of diluted common shares outstanding during each period. The weighted average number of diluted common shares outstanding for the three months ended March 31, 2003 and 2002 were 32,161,730 and 33,372,501, respectively. The Company's only potentially dilutive instruments are stock options outstanding and dilution from these is not significant. 10. 2002 Restatement for Stock Options: As disclosed in the Company's 2002 Form 10-K in the fourth quarter of 2002 the Company changed its method of accounting for stock options and began applying variable accounting treatment for stock options issued in 1999 and 2000. Accordingly, the Company restated its 2002 quarterly results. The impact of the restatement for the three months ended March 31, 2002 resulted in a decrease to net earnings of $1.4 million or $0.04 per diluted share. 11. Contingency Related to CAR: Member companies of CAR have joint and several liabilities for the obligations of CAR. If one member of CAR fails to pay its assessments, the remaining members of CAR will be required to pay the pro-rata share of the member who fails to pay its obligations. At the present time, the Company is not aware of any CAR member company who has failed to meet its obligations. 9 The Commerce Group, Inc. and Subsidiaries NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS (Thousands of Dollars Except Per Share Data) (Continued) In a letter to the Massachusetts Insurance Commissioner (the "Commissioner") dated June 25, 2002, the Massachusetts Attorney General reported that, based on his examination of available information, he "believes that the CAR plan for providing access to insurance in the residual market does not comply with the CAR enabling statute, and must be changed to produce a fair and equitable market". The Attorney General's letter describes several factors that he believes support his findings and which he believes should be corrected in order to comply with Massachusetts law governing CAR. The Attorney General's letter calls on the Commissioner to work with him to address these issues. It is uncertain whether and to what extent the issues raised by the Attorney General will be addressed by the Commissioner. We cannot be certain whether changes, if any, would have a material impact on the Company. 12. Preferred Stock Mutual Funds: The following table reflects the shares held, percentage of ownership, carrying value at equity, book value, market value, and value of shares at net asset value, by fund at March 31, 2003 and December 31, 2002:
March 31, 2003 -------------- Fund Carrying Quoted Value of Fund Shares % of Value Book Market Shares at Net Symbol(1) Held Ownership at Equity Value Value Asset Value - --------- ------ --------- --------- ----- ------ ------------- PGD 2,571,100 30.8% $ 29,336 $ 28,358 $ 29,774 $ 29,336 PPF 2,373,700 32.7% 28,128 26,297 29,695 28,128 PDF 4,696,100 31.3% 37,522 42,489 42,218 37,522 PDT 5,506,500 36.7% 53,413 59,508 56,221 53,413 DIV 3,624,700 36.6% 43,641 50,325 49,658 43,641 PFD 2,740,000 27.3% 39,922 41,064 44,114 39,922 PFO 3,692,243 32.5% 42,535 44,464 47,999 42,535 ----------------------------------------------- Total $274,497 $292,505 $299,679 $274,497 =============================================== December 31, 2002 ----------------- Fund Carrying Quoted Value of Fund Shares % of Value Book Market Shares at Net Symbol(1) Held Ownership at Equity Value Value Asset Value - --------- ------ --------- --------- ----- ------ ------------- PGD 2,571,100 30.8% $ 29,259 $ 28,358 $ 29,568 $ 29,259 PPF 2,373,800 32.7% 26,777 26,298 28,367 26,777 PDF 4,696,100 31.3% 37,851 42,489 39,306 37,851 PDT 5,506,500 36.7% 53,743 59,507 53,413 53,743 DIV 3,635,600 36.7% 44,536 50,492 47,481 44,536 PFD 2,799,500 27.9% 38,185 41,882 42,273 38,185 PFO 3,756,043 33.1% 40,265 45,166 45,861 40,265 ----------------------------------------------- Total $270,616 $294,192 $286,269 $270,616 =============================================== John Hancock Patriot Global Dividend Fund ("PGD"), John Hancock Patriot Preferred Dividend Fund ("PPF"), John Hancock Patriot Premium Dividend I Fund ("PDF"), John Hancock Patriot Premium Dividend II Fund ("PDT"), John Hancock Patriot Select Dividend Fund ("DIV"), Preferred Income Fund ("PFD"), Preferred Income Opportunity Fund ("PFO").
13. Stock-Based Compensation During 2002, the Financial Accounting Standards Board issued Statement of Financial Accounting Standard ("SFAS") No. 148, "Accounting for Stock- Based Compensation-Transition and Disclosure", which provides alternative methods of accounting for stock-based compensation and amends SFAS No. 123, "Accounting for Stock-Based Compensation". The Company measures stock-based compensation expense (for the employee stock options granted in 1999 and 2000) under the variable accounting method in accordance with Accounting Principles Board ("APB") Opinion No. 25, "Accounting for Stock Issued to Employees", and its related interpretations. As allowed by SFAS No. 148, the Company has elected to continue to apply variable accounting for the stock options granted in 1999 and 2000. The Company continues to comply with APB Opinion No. 10 The Commerce Group, Inc. and Subsidiaries NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS (Thousands of Dollars Except Per Share Data) (Continued) 13. Stock-Based Compensation (continued) 25 and related interpretations in applying fixed accounting for the employee stock options granted in 2001. Under the provisions of APB Opinion No. 25, no expense has been recognized for these 2001 employee stock options in the first quarter 2003 and 2002. The Company has adopted the disclosure requirements of SFAS No. 123, as amended by SFAS 148. If compensation expense for all employee stock options had been measured under the fair value based method prescribed by SFAS No. 123, as amended, net earnings would have been changed to the pro-forma amounts set forth below:
Three Months Ended March 31, 2003 2002 ------- ------- Net earnings as reported $12,920 $33,970 Adjust for employee stock-based compensation expense (income) included in reported net earnings, net of taxes (1,648) 1,446 Adjust for employee stock-based compensation (expense) determined under the fair value method for all employee stock options, net of tax (586) (687) ------------------- Pro-forma net earnings $10,686 $34,729 =================== Basic earnings per share: As reported $ 0.40 $ 1.03 Pro-forma $ 0.33 $ 1.05 Diluted earnings per share: As reported $ 0.40 $ 1.02 Pro-forma $ 0.33 $ 1.04
The fair value of each employee stock option is estimated on the date of the grant using the Black-Scholes option-pricing model with the following assumptions: Dividend yield * Expected volatility 28.9% Risk-free interest rate 2.64% Expected option life in years 3 * 0% for Employee stock options granted in 1999 and 2000 and 3.53% for employee stock options granted in 2001.
14. Reinsurance Changes to Become Effective on July 1, 2003 The Company's 75% quota-share reinsurance agreement, which provides reinsurance on its other than automobile business, will terminate effective June 30, 2003. The quota-share program was incepted on July 1, 1998 and established for a five year period. The Company is currently negotiating for either a traditional catastrophe excess of loss reinsurance program or a continuation of the quota-share treaty with modified terms, or a combination of both. The new program will become effective July 1, 2003. The Company's 100 and 250 year PMLs (probable maximum losses) have been estimated at approximately $177 million and $287 million, respectively, based on policies in force at December 31, 2002. 11 Item 2. Management's Discussion and Analysis The Commerce Group, Inc. and Subsidiaries MANAGEMENT'S DISCUSSION AND ANALYSIS (Thousands of Dollars Except Per Share Data) General The Commerce Group, Inc. (the "Company"), was incorporated in 1976. The Company is engaged in providing personal and commercial property and casualty insurance primarily in Massachusetts through its principal subsidiary, The Commerce Insurance Company ("Commerce"), which was incorporated in 1971 and began writing business in 1972. The Company's predominant insurance line is motor vehicle insurance, primarily covering Massachusetts personal auto-mobiles. The Company also offers commercial automobile, homeowners, inland marine, fire, general liability, commercial multi-peril and personal and commercial umbrella insurance. The Company also writes insurance in California and Oregon through Commerce West Insurance Company ("Commerce West"), located in Pleasanton, California, which primarily focuses on personal automobile insurance and also writes commercial automobile insurance. Additionally, the Company writes insurance through American Commerce Insurance Company ("American Commerce"), which writes primarily personal automobile insurance and also writes homeowner insurance. Located in Columbus, Ohio, American Commerce is a wholly-owned subsidiary of ACIC Holding Co., Inc. with policies in 24 states and licenses in several others. Through its subsidiaries combined insurance activities, the Company is ranked as the 26th largest personal automobile insurance group in the country by A.M. Best, based on the most recently available direct written premium information. 2002 Restatement for Stock Options As disclosed in the Company's 2002 Form 10-K, in the fourth quarter of 2002 the Company changes its method of accounting for employee stock options and began applying variable accounting treatments for employee stock options in 1999 and 2000. Accordingly, the Company restated its 2002 quarterly results. The impact of the restatement for the three months ended March 31, 2002 resulted in a decrease to net earnings of $1.4 million or $0.04 per diluted share. 12 The Commerce Group, Inc. and Subsidiaries MANAGEMENT'S DISCUSSION AND ANALYSIS Three months ended March 31, 2003 compared to three months ended March 31, 2002 (Thousands of Dollars Except Per Share Data) Results of Operations Premiums The following table compares direct premiums written, net premiums written and earned premiums for the three months ended March 31, 2003 and 2002:
Three Months Ended March 31, -------------------------------------------- 2003 2002 $ Change % Change -------- -------- -------- -------- Direct Premiums Written: Personal Automobile (Massachusetts) $341,330 $300,657 $40,673 13.5% Personal Automobile (All other states) 47,469 35,575 11,894 33.4 Commercial Automobile (Massachusetts) 24,742 21,070 3,672 17.4 Commercial Automobile (All other states) 1,985 786 1,199 152.5 Homeowners (Massachusetts) 18,346 14,598 3,748 25.7 Homeowners (All other states) 7,192 5,298 1,894 35.7 Other lines (Massachusetts) 7,523 5,586 1,937 34.7 Other lines (All other states) 207 147 60 40.8 ------------------------------------------ Total Direct Premiums Written $448,794 $383,717 $65,077 17.0% ========================================== Net Premiums Written: Personal Automobile (Massachusetts) $342,848 $303,128 $39,720 13.1% Personal Automobile (All other states) 46,619 35,560 11,059 31.1 Commercial Automobile (Massachusetts) 26,042 21,011 5,031 23.9 Commercial Automobile (All other states) 1,904 760 1,144 150.5 Homeowners (Massachusetts) 5,594 4,391 1,203 27.4 Homeowners (All other states) 1,483 1,267 216 17.0 Other lines (Massachusetts) 2,486 1,375 1,111 80.8 Other lines (All other states) 59 49 10 20.4 ------------------------------------------ Total Net Premiums Written $427,035 $367,541 $59,494 16.2% ========================================== Earned Premiums: Personal Automobile (Massachusetts) $242,845 $204,265 $38,580 18.9% Personal Automobile (All other states) 42,237 32,497 9,740 30.0 Commercial Automobile (Massachusetts) 16,032 12,862 3,170 24.6 Commercial Automobile (All other states) 1,376 448 928 207.1 Homeowners (Massachusetts) 6,225 5,160 1,065 20.6 Homeowners (All other states) 1,655 1,165 490 42.1 Other lines (Massachusetts) 1,688 1,654 34 2.1 Other lines (All other states) 61 44 17 38.6 Assumed from CAR 25,230 22,553 2,677 11.9 Assumed (Other) 638 116 522 450.0 ------------------------------------------ Total Earned Premiums $337,987 $280,764 $57,223 20.4% ========================================== Earned Premiums (Massachusetts) $266,790 $223,941 $42,849 19.1% Earned Premiums (Assumed) 25,868 22,669 3,199 14.1 Earned Premiums (All other states) 45,329 34,154 11,175 32.7 ------------------------------------------ Total Earned Premiums $337,987 $280,764 $57,223 20.4% ==========================================
13 The Commerce Group, Inc. and Subsidiaries MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued) The $40,673, or 13.5% increase, in Massachusetts personal automobile direct premiums written during the first quarter of 2003 resulted primarily from an 8.2% increase in average written premium per written exposure coupled with a 4.6% increase in the number of exposures written. The increase in other than Massachusetts personal automobile and homeowners business was primarily attributable to book transfers in various states, increased retention on existing business and additional rate per policy. Additionally, the increase in homeowners in other states is impacted by contraction of authority to write homeowner business by competitors. The Company's increase in Massachusetts commercial automobile premium is directly related to an effort to increase writings in this line of business and from increases in the average rate per policy. The Company's increase in Massachusetts homeowner premium is primarily related to an increased number of agents, fewer carriers writing homeowner business, the Company's pricing position in the marketplace and agents writing more homeowner business to achieve a homeowner discount for their customer when the Company also insures the customer's automobile. The $57,223, or 20.4% increase, in total earned premiums during the first quarter of 2003 as compared to the first quarter of 2002 was primarily attributable to increases in personal automobile business. Investment Income Net investment income is affected by the composition of the Company's investment portfolio and yields on those investments. The following table summarizes the composition of the Company's investment portfolio, at cost, at March 31, 2003 and 2002:
March 31, ---------------------------------------------- % of % of 2003 Invest. 2002 Invest. ---------- ------- ---------- ------- Fixed maturities (GNMA & FNMA mortgage- backed bonds, corporate bonds, U.S. Treasury bonds and notes and tax- exempt state and municipal bonds) $ 792,829 48.0% $ 656,127 43.4% Preferred stocks 293,305 17.7 252,031 16.7 Common stocks 82,958 5.0 87,704 5.8 Preferred stock mutual funds 292,505 17.7 296,518 19.6 Mortgages and collateral loans 23,252 1.4 37,372 2.4 Cash and cash equivalents 130,949 7.9 152,219 10.1 Other investments 37,765 2.3 29,707 2.0 ------------------------------------------- Total investments $1,653,563 100.0% $1,511,678 100.0% ===========================================
The Company's investment objective continues to focus on maximizing after-tax investment income through investing primarily in high quality securities coupled with acquiring equity investments, which may forgo current investment yield in favor of potential higher yielding capital appreciation in the future. 14 The Commerce Group, Inc. and Subsidiaries MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued) As depicted in the following table, first quarter 2003 net investment income decreased $200, or 0.1%, compared to the same period in 2002, principally as a result of a decrease in yield offset by an increase in average invested assets at cost. The decrease in yield is primarily due to lower short-term yields coupled with an environment of lower long-term yields and higher yielding investment securities being called. The Company continues to monitor interest rates on medium and long-term securities and intends to maintain its relatively high cash position until such time as the Company believes medium and long-term rates have appropriately firmed. During the first quarter the Company purchased approximately $145 million of U.S. Government agency securities. The Company believes these securities will have a duration of less than three years. This will allow the Company to achieve higher yields than cash until longer term investments are acquired. Net investment income as a percentage of total average investments was 5.6% in the first quarter of 2003 compared to 5.9% for the same period in 2002. After tax net investment income as a percentage of total average investments was 4.5% and 4.6% in the first quarter of 2003 and 2002, respectively. Investment Return
Three Months Ended March 31, ---------------------------- 2003 2002 ---------- ---------- (Restated) Average month-end investments (at cost) $1,636,849 $1,544,805 Net investment income 22,704 22,904 Net investment income after-tax 18,359 17,849 Net investment income as a percentage of average net investments (at cost) 5.6% 5.9% Net investment income after-tax as a percentage of average net investments (at cost) 4.5% 4.6%
Investment Gains and (Losses) Net realized investment losses totaled $5,844 or $0.19 per diluted share, during the first quarter of 2003 as compared to realized investment losses of $3,447, or $0.07 per diluted share, during the same period in 2002 as detailed below. Net realized gains (losses) by category for the three months ended March 31, are as follows:
2003 2002 -------- ------- Fixed maturities $ 3,373 $ (195) Preferred stocks 981 (47) Common stocks 267 (9) Preferred stock mutual funds 5,569 (1,248) Venture capital fund investments (588) (1,931) Other 10 (17) Other-than-temporary writedowns (15,456) 0 ------------------- Net realized investment losses before tax (5,844) (3,447) Income tax benefit at 35% (2,045) (1,206) ------------------- Net realized investment losses after tax and before impact of valuation allowance (3,799) (2,241) Impact of valuation allowance (2,380) 0 ------------------- Net realized investment losses after tax and after impact of valuation allowance. $ (6,179) $(2,241) =================== Per diluted share net realized investment losses after tax and after tax impact of valuation allowance per diluted share $ (0.19) $ (0.07)
15 The Commerce Group, Inc. and Subsidiaries MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued) The 2003 realized losses were primarily impacted by write-downs for other-than-temporary declines in the market value of certain fixed maturities and preferred stocks totaling $15,456. The other-than-temporary writedowns consisted of a municipal bond, Atlanta Housing of $2,433, two corporate bonds, Fairfax Financial Holdings of $1,461, and Lumbermans Mutual Insurance of $5,034; as well as two preferred stocks, El Paso Tenn Pipeline of $6,379 and Touch America Holdings of $149. The Company reviews all security holdings on a quarterly basis with regards to other-than-temporary declines in market value pursuant to FASB 115 ("Accounting for Certain Investments in Debt and Equity Securities") and other applicable guidance. As part of this process, the Company considers any significant market declines in the context of the overall market and also in relation to the outlook for the specific issuer of the security. From a quantitative standpoint, the Company views all securities that have fallen more than 25% below book price and have remained so for two quarters as potentially in need of a writedown. In addition, any other security that the Company views as impaired for a significant period of time is also a candidate for a writedown, even if the percentage decline is less than 25%. These write- downs were offset by improvement in the market values of underlying securities held by closed-end preferred stock mutual funds, which resulted in realized gains of $5,569. The Company reflects these improvements through realized gains because its significant level of ownership requires the use of the equity method of accounting for these funds. Additionally, the Company had a $3,867 gain which resulted from the sale of corporate bonds of another non-affiliated insurance company. Loss and Loss Adjustment Expenses Loss and loss adjustment expenses incurred (on a statutory basis) as a percentage of insurance premiums earned ("loss ratio") increased to 81.5% for the first quarter of 2003 compared to 76.9% for the first quarter of 2002. Due to the severe winter weather experienced in the Northeast, the Company experienced: (1) an increase in Massachusetts personal automobile claim frequency of approximately 20% compared to last year and approximately 50% in the Massachusetts homeowner line; (2) higher losses assumed from the Commonwealth Automobile Reinsurers ("CAR"). In comparison to the prior year, these factors were somewhat offset by reduced loss ratios for other than Massachusetts business. The other than Massachusetts loss ratio was 81.2% for the first three months of 2003 as compared to 89.5% for the same period a year ago. Policy Acquisition Costs As a percentage of net premiums written, underwriting expenses for the insurance companies (on a statutory basis) decreased to 20.0% for the first quarter of 2003 as compared to 21.2% for the same period a year ago. The improvement was primarily due to lower contingent commissions as a result of the high loss ratios mentioned previously, coupled with premium growth exceeding growth in underwriting expenses. Combined Ratios The combined ratio of losses and expenses (on a statutory basis) was 101.5% in the first quarter of 2003 compared with 98.1% for the same period a year ago. This resulted in an underwriting loss percentage for the first quarter of 2003 of 1.5% as compared to a profit of 1.9% for the first quarter of 2002. Income Taxes The effective tax rate for the three months ended March 31, 2003 was 25.5% as compared to 25.6% for the three months ended March 31, 2002. In both years, the effective rate was lower than the statutory rate of 35% primarily due to tax-exempt interest and the corporate dividends received deduction. The 2003 effective rate was also impacted by the increase in the valuation allowance for realized investment losses. Net Earnings During the first quarter of 2003 the company recorded net earnings of $12,920 as compared to net earnings of $33,970 for the same period of 2002 for reasons mentioned previously. 16 The Commerce Group, Inc. and Subsidiaries MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued) Operating Earnings Operating earnings, a non-GAAP financial measure, were $17,451, or $0.54 per diluted share, compared to $26,420 or $0.79 per diluted share for 2002 (as restated). Operating earnings consist of net earnings adjusted to exclude: (1) the after-tax impact of net realized investment losses; (2) the after-tax impact of variable accounting stock option treatment; and, (3) for 2002 only, the after-tax effect of a required change in accounting principles. The Company believes that the items noted above, which are eliminated in the calculation of operating earnings, are not indicators of corporate operating performance and, as such, are not measures used by the Company in managing operations. Operating earnings as defined by the Company may not be comparable to similarly captioned measurements utilized by other property and casualty insurance companies. A reconciliation of net earnings to operating earnings is provided in the tables that follow.
March 31, March 31, 2003 2002 --------- --------- (Restated) Reconciliation of net earnings to operating earnings: Net earnings $ 12,920 $ 33,970 Plus net realized losses, net of tax 6,179 2,241 Less change in accounting principle, net of tax 0 (11,237) Plus (less) variable accounting stock option (income) expense, net of tax (1,648) 1,446 --------------------- Operating earnings $ 17,451 $ 26,420 ===================== Reconciliation of net earnings to operating earnings per diluted share: Net earnings per diluted share $ 0.40 $ 1.02 Plus net realized losses, net of tax 0.19 0.07 Less SFAS No. 142 change in accounting principle, net of tax 0.00 (0.34) Plus (less) variable accounting stock option (income) expense, net of tax (0.05) 0.04 --------------------- Operating earnings per diluted share $ 0.54 $ 0.79 =====================
Liquidity and Capital Resources The focus of the discussion of liquidity and capital resources is on the Consolidated Balance Sheets on page 3 and the Consolidated Statements of Cash Flows on pages 5 and 6. Stockholders' equity decreased by $1,564 during the first three months of 2003 as compared to December 31, 2002. The decrease resulted from dividends paid to stockholders of $9,931 and treasury stock purchases of $8,058, offset by net earnings of $12,920 and a $3,505 increase in other comprehensive income, net of income taxes on fixed maturities and preferred and common stocks. Total assets at March 31, 2003 increased $189,807 or 8.0% to $2,572,495 as compared to total assets of $2,382,688 at December 31, 2002. Invested assets, at market value and equity, increased $87,904 or 5.6%. Premiums receivable increased $71,379, or 24.0%. The increase in premiums receivable from December 31, 2002, was primarily attributable to increases in the Company's business, coupled with the seasonality of the policy effective dates of the Company's business. This occurs because the total amount of a policy's premium is recorded as written premium on the first day the policy is effective, however, the policy premium is billed over the ensuing year. Deferred policy acquisition costs increased $14,313 or 10.4% as a result of increased business. The residual market receivable increased $5,064 or 3.1% over 2002 due to increased business assumed from CAR. The Company's liabilities totaled $1,779,884 at March 31, 2003 as compared to $1,588,530 at December 31, 2002. The $191,354 or 12.0% increase was primarily comprised of increases in 17 The Commerce Group, Inc. and Subsidiaries MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued) unpaid losses and loss adjustment expenses, unearned premiums and a payable for securities purchased. The liability for losses and loss adjustment expense reserves increased $41,536 or 5.1%. Unearned premiums increased $90,981 or 13.2%, due primarily to the same reason premiums receivable increased. Payable for securities purchased totaled $63,075 at March 31, 2003 as compared to $0 at December 31, 2002. This was the result of securities purchased with trade dates in March of 2003 that did not settle until April of 2003. The primary sources of the Company's liquidity are funds generated from insurance premiums, net investment income, premium finance and service fees and the maturing and sale of investments as reflected in the Consolidated Statements of Cash Flows on pages 5 and 6. The Company's operating activities provided cash of $49,797 in the first three months of 2003, as compared to $53,099 during the same period a year ago, representing a decrease of $3,302 or 6.2%. Premiums collected less loss and policy acquisition cost payments were approximately $900 higher in 2003 compared to 2002. Due to the severe winter loss payments increased over 20% versus last year. The remaining reasons for the decrease is that the Company received $7,000 in the first quarter of 2002 for an agreement to offer to write the business from Berkshire Mutual Insurance Company. This was partially offset by premium finance and service fees collected which increased $1,398 or 28.3% primarily as the result of increased business and a service fee increase on Massachusetts new and renewal business from three dollars to four dollars per installment payment, for policies with effective dates of July 1, 2002 and forward. For the first three months of 2003 and 2002 net cash flows from investing activities used cash of $70,805 and $32,794, respectively. The majority of the $38,011 difference was a $75,274 increase in purchases of fixed maturities coupled with a $9,866 decrease in sales of equity securities offset by a $43,696 increase in proceeds from fixed maturities. The vast majority of the purchased securities during 2003 were short duration securities that act as cash substitutes. During 2003 and 2002, investing activities were funded by accumulated cash and cash provided by operating activities. Cash flows used in financing activities totaled $17,989 during the first three months of 2003 compared to $16,716 during the same period a year ago. The 2003 cash flows used in financing activities consisted of dividends paid to stockholders of $9,931, coupled with $8,058 used to purchase 236,400 shares of treasury stock under the Company's stock buyback program. The 2002 cash flows used in financing activities consisted of dividends paid to stockholders of $9,927 and $6,789 used to purchase 180,000 shares of treasury stock under the company's stock buy-program. The Company's funds are generally invested in securities with maturities intended to provide adequate funds to pay claims without the forced sale of investments. The carrying value (at market and equity) of total investments at March 31, 2003 was $1,664,974. At March 31, 2003, the Company held cash and cash equivalents of $130,949. These funds provide sufficient liquidity for the payment of claims and other short-term cash needs. The Company continues to monitor interest rates on medium and long- term securities and intends to maintain its relatively high cash position until such time as the Company believes medium and long-term rates have appropriately firmed. Industry and regulatory guidelines suggest that the ratio of a property and casualty insurer's annual net premiums written to statutory policyholders' surplus should not exceed 3.00 to 1.00. The Company's annualized statutory premiums to surplus ratio was 1.42 to 1.00 and 1.70 to 1.00 for the period ended March 31, 2003 and 2002, respectively. Stock Buyback and Dividends The Company purchased 236,400 shares of Treasury stock under the buyback program through March 31, 2003 at an average cost of $34.09. At March 31, 2003, the Company had the authority to purchase 741,456 additional shares of common stock under the current Board of Directors' stock re- purchase authorization. 18 The Commerce Group, Inc. and Subsidiaries MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued) On March 14, 2003, the Company paid a quarterly dividend of $0.31 to stockholders of record as of February 28, 2003. Effects of Inflation and Recession The Company generally is unable to recover the costs of inflation in its personal automobile insurance line since the premiums it charges are subject to state regulation. Additionally, the premium rates charged by the Company for personal automobile insurance are adjusted by the Commissioner only at annual intervals. Such annual adjustments in premium rates may lag behind related cost increases. Economic recessions may also have an impact upon the Company, primarily through the policyholder's election to decrease non-compulsory coverages afforded by the policy and decreased driving, each of which tends to decrease claims. To the extent inflation and economic recession influence yields on investments, the Company is also affected. As each of these environments affect current market rates of return, previously committed investments may rise or decline in value depending on the type and maturity of investment. Inflation and recession must also be considered by the Company in the creation and review of loss and LAE reserves since portions of these reserves are expected to be paid over extended periods of time. The anticipated effect of economic conditions is implicitly considered when estimating liabilities for losses and LAE. The importance of continually adjusting reserves is even more pronounced in periods of changing economic circumstances. Forward-Looking Statements This Form 10-Q contains some statements that are not historical facts and are considered "forward-looking statements" as defined in the Private Securities Litigation Reform Act of 1995. Such forward-looking statements involve opinions, assumptions and predictions, and no assurance can be given that the future results will be achieved since events or results may differ materially as a result of risks facing the Company. These include, but are not limited to, those risks and uncertainties in our business, some of which are beyond the control of the Company, that are described in the Company's Forms 10-K and 10-Q, Schedules 13D and 13G, and other documents filed with the SEC, including the possibility of adverse catastrophe experience and severe weather, adverse trends in claim severity or frequency, adverse state and federal regulation and legislation, adverse state judicial decisions, litigation risks, interest rate risk, rate making decisions for private passenger automobile policies in Massachusetts, potential rate filings outside of Massachusetts, adverse impacts related to consolidation activities, heightened competition, as well as the economic, market or regulatory conditions and risks associated with entry into new markets and diversification. The Commerce Group, Inc. is not under any obligation to (and expressly disclaims any such obligations to) update or alter its forward-looking statements, whether as a result of new information, future events or otherwise. Additional Financial Information Available on Company Website Additional supplemental financial information is available on the Company's website at http://www.commerceinsurance.com, under the "Links" section of the "News & Investors" tab. 19 The Commerce Group, Inc. and Subsidiaries Item 3. Quantitative and Qualitative Disclosures about Market Risk The Company's investment strategy emphasizes investment yield while maintaining investment quality. The Company's investment objective continues to focus on maximizing after-tax investment income through investing in high quality diversified investments structured to maximize after-tax investment income while minimizing risk. The Company's funds are generally invested in securities with maturities intended to provide adequate funds to pay claims and meet other operating needs without the forced sale of investments. Periodically, sales have been made from the Company's fixed maturity portfolio to actively manage portfolio risks, including credit-related concerns, to optimize tax planning and to realize gains. This practice will continue in the future. In conducting investing activities, the Company is subject to, and assumes, market risk. Market risk is the risk of an adverse financial impact from changes in interest rates and market prices. The level of risk assumed by the Company is a function of the Company's overall objectives, liquidity needs and market volatility. The Company manages its market risk by focusing on higher quality equity and fixed income investments, by periodically monitoring the credit strength of companies in which investments are made, by limiting exposure in any one investment and by monitoring the quality of the investment portfolio by taking into account credit ratings assigned by recognized rating organizations. Although the Company has significant holdings of various closed-end preferred stock mutual funds, these funds are comprised primarily of preferred and common stocks traded on national stock exchanges, thus limiting exposure to any one investment. The Company's exposure to interest rate changes at March 31, 2003 was estimated as follows: A 200 basis point increase results in a $73,743 decrease in the market value of the fixed maturities and preferred stocks. A 200 basis point decrease results in a $46,411 increase in the market value of the same securities. Item 4. Controls and Procedures (a) Evaluation of disclosure controls and procedures Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we evaluated the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rule 13a-14(c) and 15d-14(c) under the Exchange Act) as of a date (the "Evaluation Date") within 90 days prior to the filing date of this report. Based upon that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that, as of the evaluation date, our disclosure controls and procedures are effective to ensure that information required to be disclosed in the reports that the Company files or submits under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported, within the time periods specified in the Securities and Exchange Commission's rules and forms. (b) Changes in internal controls There have been no significant changes in the Company's internal controls or in other factors that could significantly affect these controls subsequent to the evaluation date. 20 The Commerce Group, Inc. and Subsidiaries PART II - OTHER INFORMATION Item 1. Legal Proceedings Please refer to Note 3 located in "Part I, Item 1 - Financial Statements Notes to Unaudited Consolidated Financial Statements" section. Item 2. Changes in Securities and Use of Proceeds None Item 3. Defaults Upon Senior Securities None Item 4. Submissions of Matters to a Vote by Security Holders None Item 5. Other Information In accordance with Section 306 of the Sarbanes-Oxley Act of 2002 ("the Act"), a required communication was sent to Directors and Executive Officers of the Company as a result of the Company's transfer of recordkeeping services of The Commerce Group, Inc. Employee Stock Ownership Plan (ESOP) to Fidelity Investments. The Company initiated a black-out period on all participants in the ESOP between February 24, 2003 through March 21, 2003. As a result of the Act, because a blackout period was imposed on a Company sponsored benefit plan, the attached letter was sent to all Directors and Executive Officers of the Company providing information required under the Act. Pension Black Out Period To: Directors and Executive Officers From: Randy Becker Date: February 21, 2003 Subject: Potential Stock Trading Restrictions from February 24 through March 21, 2003 As you are probably aware, numerous new laws, rules and regulations have come into place as a result of the Sarbanes-Oxley Act of 2002 ("the Act"). One of the areas of the Act pertains to situations when a Company imposes a blackout period on pension plan activity. The Company is imposing a blackout period on all ESOP participants from February 24, 2003 through March 21, 2003 due to the transfer of the plan administration to Fidelity Investments. In accordance with Section 306 of the Act, the Company is required by law to inform its Directors and Executive Officers of the restrictions placed on them with regard to acquiring or disposing securities during this blackout period. For Executive Officers, the Act prohibits purchases of equity securities during a blackout period if the acquisition is in connection with the service or employment of the director or executive officer. In Commerce's case, this prohibition pertains exclusively to Executive Officers in that they are prohibited from otherwise exercising their rights under the stock option program during the blackout period. 21 For both Directors and Executive Officers, the Act prohibits the disposition (sale) of equity securities during a blackout period if the securities contemplated to be sold were acquired in connection with your service or employment as a director or executive officer. Examples of this would be: shares acquired for you by the ESOP, whether currently held in the ESOP or elsewhere; shares acquired through the management incentive plan, etc. As a result of the above, prior to engaging in any transaction involving Company securities, please contact our outside counsel, Gus Alexander of Nutter, McClennen & Fish LLP at 617-439-2595 to discuss any proposed transaction. If you have any questions on the above information, please give me a call at 800-922-8276, extension 4129. Cc: C. Alexander, Esq., NMF 22 ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Reports on Form 8-K - None Page No. (b) Exhibit 10.27 - Initial ACIC Agent Option Agreement 26 Exhibit 99.1 - CEO Certification Statement Under Section 906 of The Sarbanes-Oxley Act of 2002 37 Exhibit 99.2 - CFO Certification Statement Under Section 906 of The Sarbanes-Oxley Act of 2002 38 SIGNATURE 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 thereunto duly authorized. THE COMMERCE GROUP, INC. RANDALL V. BECKER ------------------------------ Randall V. Becker Treasurer and Chief Accounting Officer Dated this 13th day of May, 2003. 23 CERTIFICATIONS I, Arthur J. Remillard, Jr., certify that: 1. I have reviewed this quarterly report on Form 10-Q of The Commerce Group, Inc.; 2. Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report; 3. Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have: (a) designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared; (b) evaluated the effectiveness of the registrant's disclosure controls and procedures as of a date within 90 days prior to the filing date of this quarterly report (the "Evaluation Date"); and (c) presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date; 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): (a) all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant's ability to record, process, summarize and report financial data and have identified for the registrant's auditors any material weaknesses in internal controls; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls; and 6. The registrant's other certifying officer and I have indicated in this quarterly report whether there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses. Date: May 12, 2003 ARTHUR J. REMILLARD, JR. ------------------------------ Arthur J. Remillard, Jr. Chief Executive Officer 24 CERTIFICATIONS I, Gerald Fels, certify that: 1. I have reviewed this quarterly report on Form 10-Q of The Commerce Group, Inc.; 2. Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report; 3. Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have: (a) designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared; (b) evaluated the effectiveness of the registrant's disclosure controls and procedures as of a date within 90 days prior to the filing date of this quarterly report (the "Evaluation Date"); and (c) presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date; 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): (a) all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant's ability to record, process, summarize and report financial data and have identified for the registrant's auditors any material weaknesses in internal controls; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls; and 6. The registrant's other certifying officer and I have indicated in this quarterly report whether there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses. Date: May 12, 2003 GERALD FELS ------------------------------ Gerald Fels Chief Financial Officer 25 EX-10 3 cgi-x10.txt EXHIBIT 10.27 Exhibit 10.27 VOID AFTER 5:00 P.M., EASTERN TIME, ON JANUARY 29, 2009 COMMON STOCK PURCHASE OPTION THIS OPTION HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE IN RELIANCE ON EXEMPTIONS THEREFROM AND, THEREFORE, MAY NOT BE RESOLD UNLESS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THIS OPTION HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR SALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF WITHIN THE MEANING OF THE ACT. THE COMMERCE GROUP, INC. INITIAL ACIC AGENT OPTION Expiring January 29, 2009 No. ACIC-I-5 THE COMMERCE GROUP, INC., a Massachusetts corporation (the "Company"), for value received, hereby certifies that "CLUB NAME" (the "Named Agent"), or its permitted assigns (together with the Named Agent, the "Holder"), shall be entitled to purchase from the Company up to __ (# OF SHARES) duly authorized, validly issued, fully paid and nonassessable shares (the "Option Shares") of the Company common stock, $.50 par value per share (the "Common Stock"), at the purchase price per share of $__________, as such price may be adjusted from time to time pursuant to Section 8 of this Option (the "Exercise Price"), at any time or from time to time from on or after the Confirmation Date (as hereinafter defined) up to and until 5:00 P.M., Eastern time, on January 29, 2009 or such later date determined in accordance with Section 10.1 of this Option (the "Expiration Date"), all subject to the terms and conditions and adjustments set forth below in this Option. This Option is one of a series of substantially identical options (collectively, the "Initial ACIC Agent Options") granted to agents (the "Agents") of American Commerce Insurance Company, a majority owned subsidiary of the Company ("ACIC"). As used in this Option, the term "Holders" refers collectively to all of the Holders as defined in all of the Initial ACIC Agent Options. To the extent provided by Section 14 of this Option, certain terms of this Option may be amended without the Holder's consent if such amendment is approved by a sufficient number of other Holders of Initial ACIC Agent Options. The purpose of the Initial ACIC Agent Options is to provide an incentive for the Agents to maintain their existing business volume with ACIC. 1. Vesting and Termination of Option --------------------------------- 1.1 The right of the Holder to exercise this Option is contingent upon the volume of direct written premiums derived by ACIC from Qualifying Business (as defined below) that the Named Agent places and maintains with ACIC. As used in this Option, the term "Qualifying Business" means private passenger automobile and homeowner insurance for risks written outside of Massachusetts. 1 1.2 Notwithstanding any other provision of this Option, this Option shall be exercisable on or after the Confirmation Date only to the extent set forth in the following table based upon the average annual volume of direct written premiums (the "Five-Year Average") from Qualifying Business that the Named Agent places with ACIC during the five-year period ending on December 31, 2003 (the "Measurement Date"), rounded to the nearest whole share. 1.3 In computing the Five-Year Average, the annual volume of direct written premiums derived by the Company from Qualifying Business placed by the Named Agent shall be computed in accordance with generally accepted accounting principles, consistently applied. The Company shall send to the Named Agent by January 29, 2004 (the "Confirmation Date") a certificate signed by its Chief Financial Officer attesting to the Five-Year Average. No action or proceeding to dispute the calculation of the Five-Year Average may be instituted or maintained unless the Named Agent gives written notice to the Company within thirty (30) days after the Confirmation Date. 1.4 Notwithstanding any other provision of this Option, this Option shall terminate and none of the Option Shares shall be purchasable hereunder if, at any time during the five-year period ending on the Measurement Date, the Named Agent does not permit ACIC to market private passenger automobile and homeowner insurance in the Named Agent's Service Area (as defined below) using the AAA Mark (as defined below). As used in this Option, "AAA Mark" shall mean the AAA emblem, meaning the letters "AAA" in block form, enclosed within an oval or without an oval and as otherwise described in the Emblem Regulations (as defined below). "Service Area" shall have the meaning defined in the Bylaws of The American Automobile Association (Incorporated) ("AAA"), as the same may be amended, supplemented or superceded from time to time. "Emblem Regulations" shall mean the Regulations Governing the Use of the Emblem and Other Trademarks of AAA adopted by the AAA Board of Directors on July 8, 1992, as the same may be amended, supplemented or superceded from time to time. 2. Exercise of Call Option ----------------------- 2.1 Subject to the terms and conditions hereof, this Option may be exercised in whole or in part to the extent provided in Section 1.2 of this Option, at any time or from time to time on or after the Confirmation Date and up to and until the Expiration Date, by delivery to the Company of this Option and the purchase form annexed hereto as Exhibit A properly completed and duly executed. 2.2 This Option may be exercised only by conversion into a number of shares of Common Stock equal to (x) the number of Option Shares specified in the purchase form minus (y) a number of Option Shares having a Market Value (determined in accordance with Section 6 below) equal to the amount (the "Exercise Payment") that is the product of the then-current Exercise Price multiplied by the number of Option Shares specified in the purchase form. 2.3 Upon and as of receipt by the Company of this Option and a properly completed and duly executed purchase form, the Holder shall be deemed to be the holder of record of the shares of Common Stock issuable upon such exercise, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing such shares of Common Stock shall not then actually be delivered to the Holder. Certificates representing the shares so purchased shall be delivered to the Holder as soon as practicable and in any event not more than twenty (20) business days after exercise of this Option. Any issuance of a certificate for shares of Common Stock upon exercise of this Option shall be made without charge to the Holder for any issuance tax in respect thereof or other cost incurred by the Company in connection with such exercise and the related issuance of shares of Option Shares. 2 2.4 If the Option is exercised for less than the total number of Option Shares purchasable pursuant to Section 1.2 of the Option, the Company shall, promptly after presentation of the Option upon such exercise, execute and deliver a new Option, dated the date of this Option, evidencing the rights of the Holder to purchase the balance of the Option Shares purchasable hereunder upon the same terms and conditions herein set forth. 3. Put of Option Instrument to Company ----------------------------------- 3.1 Subject to the terms and conditions hereof, including without limitation the condition set forth in Section 3.4 of this Option, the Holder may require the Company to purchase this Option from the Holder by delivery to the Company, at any time from and after the Confirmation Date and through and including the Expiration Date, of this Option and the sale form annexed hereto as Exhibit B properly completed and duly executed. The election to sell the Option pursuant to this Section 3 shall be irrevocable but may be conditioned to the extent permitted under Section 14. 3.2 The purchase price of this Option in a sale pursuant to Section 3.1 of this Option shall be an amount (the "Put Payment") equal to the product of (x) the maximum number of Option Shares then purchasable upon the exercise of this Option multiplied by (y) the Put Spread. For purposes of this Option, the terms "Put Spread" means the arithmetic difference between the Exercise Price and $40.00, as such price may be adjusted from time to time pursuant to Section 8 of this Option (the "Put Price"). 3.3 Within five (5) business days after the Company's receipt of this Option and a properly completed and duly executed sale form, the Company shall pay the Put Payment to the Holder by wire transfer of immediately available funds. Such payment shall be made without charge to the Holder for any cost incurred by the Company in connection with such sale. From and after the date of the Company's receipt of this Option and a properly completed and duly executed sale form, this Option shall no longer be deemed to be outstanding and all rights whatsoever with respect to this Option (except the right of the Holder to receive the Put Payment) shall terminate; provided, however, that if the Company fails to pay the Put Payment within the time period required by this Section 3.3, this Option shall remain outstanding and all rights whatsoever with respect thereto shall be restored without prejudice to the Holder. 3.4 The Holder shall be entitled to require the Company to purchase this Option pursuant to this Section 3 if and only if the Five-Year Average of Qualifying Business, as defined in Section 1 of this Option, is _________________________________($ ) or more. 4. Reservation of Shares --------------------- The Company shall, at all times from the date of original issuance of the Option until its expiration, reserve for issuance and delivery upon exercise of the Option the number of Option Shares as shall be required for issuance and delivery upon exercise of the Option. All Option Shares, upon issuance, shall be validly authorized, issued and outstanding shares, fully paid and nonassessable, and free of all liens, encumbrances and (except as otherwise provided herein) restrictions thereon. The Company shall take all such actions as may be necessary to assure that all Option Shares may be so issued without violation of any applicable law or governmental regulation or any requirement of any domestic securities exchange upon which shares of Option Shares may be listed (except for official notice of issuance which shall be immediately delivered by the Company upon each such issuance). The Company shall not take any action which would cause the number of authorized but unissued Option Shares to be less than the number of such shares required to be reserved hereunder for issuance upon exercise of the Option. 3 5. Fractional Shares ----------------- If the exercise of the Option would otherwise result in the issuance of a fraction of a share, the Company shall instead of issuing any fractional shares or scrip representing fractional shares pay to the Holder an amount in cash equal to such fraction multiplied by the Market Value of a share of Common Stock. 6. Market Value of Common Stock ---------------------------- For purposes of this Agreement, (x) the Market Value of the Common Stock shall equal an amount per share of Common Stock equal to the average closing price for the ten (10) trading days immediately preceding the date of exercise or other measurement date, as reported (i) on the principal national securities exchange on which the Common Stock is traded or (ii) if the Common Stock is not traded on a national exchange, on The Nasdaq Stock Market ("Nasdaq"); or (y) if the Common Stock is not so listed on a national securities exchange or quoted on Nasdaq, the Market Value of the Common Stock shall be an amount mutually agreed upon by the Company and the Holder or, if the Company and the Holder are unable to agree, by a nationally recognized investment banking firm selected by the Company and consented to by the Holder, such consent not to be unreasonably withheld. Any fees or expenses incurred in connection with the retention of an investment banking firm pursuant to this clause (y) shall be borne by the Company. 7. No Rights as Stockholder ------------------------ This Option shall not entitle the Holder to any right as stockholder of the Company, either at law or in equity. The rights of the Holder are limited to those expressed in this Option or otherwise provided to the Holder by law. 8. Price of Option Shares; Effect of Dividends on Common Stock ----------------------------------------------------------- 8.1 The number of shares of Common Stock for which this Option may be exercised and the Exercise Price therefore shall be subject to adjustment as follows: (a) If the Company is recapitalized through the subdivision or combination of its outstanding shares of Common Stock into a larger or smaller number of shares, the number of shares of Common Stock for which this Option may be exercised shall be increased or reduced, as of the record date for such recapitalization, in the same proportion as the increase or decrease in the outstanding shares of Common Stock, and the Exercise Price shall be adjusted so that the aggregate amount payable for the purchase of all Option Shares issuable hereunder immediately after the record date for such recapitalization shall equal the aggregate amount so payable immediately before such record date. Whenever the Exercise Price shall be adjusted as required by the provisions of this Section 8.1(a), there shall be a proportionate adjustment in the Put Price. (b) If the Company declares a dividend on Common Stock, or makes a distribution to holders of Common Stock, and such dividend or distribution is payable or made in Common Stock, the number of shares of Common Stock for which this Option may be exercised shall be increased, as of the record date for determining which holders of Common Stock shall be entitled to receive such dividend or distribution, in proportion to the increase in the number of outstanding shares (and shares of Common Stock issuable upon conversion of all such securities convertible into Common Stock) of Common Stock as a result of such dividend or distribution, and the Exercise Price shall be adjusted so that the aggregate amount payable for the 4 purchase of all the Option Shares issuable hereunder immediately after the record date for such dividend or distribution shall equal the aggregate amount so payable immediately before such record date. (c) If the Company declares a dividend on Common Stock (other than a dividend covered by subsection (b) above or a cash dividend declared in the ordinary course of business (a "Regular Cash Dividend")) or distributes to holders of its Common Stock, other than as part of its dissolution or liquidation or the winding up of its affairs, any cash (a "Special Cash Dividend") or any shares of its stock, any evidence of indebtedness or any other of its assets (other than Common Stock, a Regular Cash Dividend or a Special Cash Dividend) (an "Alternative Distribution"), the Exercise Price shall be reduced by an amount equal to the amount of the Special Cash Dividend per share or, if applicable, the value of the Alternative Distribution per share of Common Stock as determined in good faith by the Company's Board of Directors based upon a written opinion from a nationally recognized investment banking firm, selected by the Company, and taking into account, among other relevant factors, whether the Holder acquired any Purchase Rights (as defined in Section 9 of this Option) with respect to such dividend or distribution pursuant to the terms hereof. The Company shall provide the Holder with written notice concerning a Special Cash Dividend or an Alternative Distribution at least ten (10) days prior to the record date therefore. (d) No adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease in the Exercise Price of at least one percent(1.0%); provided, however, that any adjustment which by reason of this Section 8.1(d) is not required to be made immediately shall be carried forward and taken into account at the time of exercise of this Option or any subsequent adjustment in the Exercise Price which, singly or in combination with any adjustment carried forward, is required to be made under this Section 8. (e) If the event in anticipation of which an adjustment is made under subsection (a), (b), (c) or (d) above does not occur, then any adjustment in the Exercise Price or number of Option Shares issuable pursuant to this Option that was made in accordance with any such subsection shall be reversed as to reinstate, effective immediately prior to the record date for such anticipated event, the Exercise Price and number of Option Shares as were in effect at that time without giving effect to such event. 8.2 If at any time or from time to time there is a capital reorganization of the Common Stock (other than a recapitalization, subdivision, combination, reclassification or other change of the Common Stock provided for in Section 8.1) or a merger or consolidation of the Company with or into another corporation, or the sale of all or substantially all of the Company's properties and assets to any other person, then, as a part of such reorganization, merger, consolidation or sale, provision shall be made so that the Holder shall thereafter be entitled to receive, upon exercise of the Option, the number of shares of stock or other securities or property of the Company, resulting from such reorganization, merger or consolidation or sale, to which a holder of Common Stock, or other securities deliverable upon the exercise of this Option, would have been entitled on such reorganization, merger, consolidation, or sale. In any such case, appropriate adjustments shall be made in the application of the provisions of this Section 8 (including adjustment of the Exercise Price then in effect and number of shares purchasable upon exercise of the Option) which shall be applicable after such events; provided, however, that any such adjustment shall be made so as to ensure that the provisions of this Section 8 applicable after such events shall be as equivalent as may be practicable to the provisions of this Section 8 applicable before such events. In the event of any such reorganization, merger, consolidation or sale, the corporation formed by such consolidation or merger or the corporation which shall have acquired the assets of the Company shall execute and deliver a supplement hereto to the foregoing effect. 8.3 If the Company shall, at any time on or after the Confirmation Date and through and including the Expiration Date, dissolve, liquidate or wind up its affairs, the Holder shall have the right to exercise this Option, subject always to the other provisions of this Option including without limitation Section 1.2. Upon such exercise, 5 the Holder shall have the right to receive, in lieu of the Option Shares that the Holder otherwise would have been entitled to receive, the same kind and amount of assets as would have been issued, distributed or paid to the Holder upon any such dissolution, liquidation or winding up with respect to such shares of Common Stock of the Company had the Holder been the holder of record, as of the date for determining those entitled to receive any such distribution, of the maximum amount of Option Shares acquirable under Section 1.2 of this Option upon such exercise. 8.4 The Company shall retain a nationally recognized firm of independent public accountants (which may be any such firm regularly engaged by the Company) to make any computation required under this Section 8, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section 8. 8.5 Whenever the number of Option Shares, the Exercise Price, or the Put Price shall be adjusted as required by the provisions of this Section 8, the Company promptly shall file in the custody of its Secretary or an Assistant Secretary, at its principal office, and furnish to each Holder hereof a certificate prepared in accordance with Section 8.4 of this Option, showing the adjusted number of Option Shares, the Exercise Price, and the Put Price and setting forth in reasonable detail the circumstances requiring the adjustment. 8.6 If an event occurs which is similar in nature to the events described in this Section 8, but is not expressly covered hereby, the Board of Directors of the Company shall make or arrange for an equitable adjustment to the number of Option Shares, the Exercise Price, and the Put Price. 9. Purchase Rights --------------- If the Company shall, at any time on or after the Confirmation Date and through and including the Expiration Date, grant, issue or sell any option, convertible security or right to purchase stock, options, securities or other property pro rata to the record Holders of Common Stock (the "Purchase Rights"), then the Holder of this Option shall be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate amount of Purchase Rights which such Holder could have acquired if such Holder had held, immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights, the number of Option Shares then acquirable upon the exercise of this Option to the fullest extent permitted by the other provisions of this Option including without limitation Section 1.2. 10. Extension of Term ----------------- 10.1 If January 29, 2009 is a day on which federal or state chartered banking institutions located in the Commonwealth of Massachusetts are authorized by law to close, then this Option shall expire on the next succeeding day that is not such a day. 10.2 If, as of the Expiration Date, the Company is subject to a binding agreement to effect a reorganization, merger or consolidation of the Company with or into another corporation, or the sale of all or substantially all of the Company's properties and assets to any other person or entity, but such contemplated transaction has not yet been effectuated, the exercise period of the Option shall be extended until such time as the pending transaction is actually consummated; provided, however, that in the event that such reorganization, merger, consolidation or sale shall fail to be consummated, the exercise period of the Option shall terminate. 6 11. Notices to Holder ----------------- If, at any time on or after the Confirmation Date and through and including the Expiration Date, (i) the Company shall propose to pay any dividends or make any distribution upon the Common Stock, other than a Regular Cash Dividend (as defined in Section 8.1 of this Option) or (ii) the Company shall offer generally to the holders of Common Stock any Purchase Right (as defined in Section 9 of this Option) or (iii) there shall be any (or any vote regarding any) proposed capital reorganization of the Company in which the Company is not the surviving entity, recapitalization of the capital stock of the Company, consolidation or merger of the Company with or into another corporation, sale, lease or other transfer of all or substantially all of the property and assets of the Company, or voluntary or involuntary dissolution, liquidation or winding up of the Company, then in such event, the Company shall cause to be deposited with an nationally recognized air courier, addressed to the Holder hereof at the address appearing on the records of the Company at least twenty (20) days prior to the relevant date described below (or the longest period as is reasonably possible if twenty (20) days is not reasonably possible, but in no event less than ten (10) days, a notice containing a description of the proposed action and stating the date or expected date on which a record of the Company's stockholders is to be taken for the purpose of any such dividend, distribution of rights, or such reclassification, reorganization, consolidation, merger, conveyance, lease or transfer, dissolution, liquidation or winding up is to take place and the date or expected date, if any is to be fixed, as of which the holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such event. 12. Restrictions on Transfer ------------------------ 12.1 Prior to the Confirmation Date, neither this Option nor any future interest in the Option Shares or any other securities issuable pursuant to this Option ("Other Securities") may be sold, pledged or otherwise transferred (collectively, a "transfer") to any person or entity without the Company's prior written consent, which consent may be given or withheld in the Company's sole discretion. 12.2 It is the intention of the Company and the Named Agent that the Option Shares and any Other Securities issued upon an exercise of this Option will be freely transferable by the Holder without registration under the Securities Act of 1933 (the "Securities Act") or any applicable state securities or "blue sky" laws. The Company shall, if requested by the Holder prior to a proposed exercise of this Option, either (i) provide to the Holder an opinion of counsel, in form and substance reasonably satisfactory to the Company, to the effect that the Holder's transfer of the Option Shares or Other Securities (a) would be exempt from the registration requirements of the Securities Act and (b) would not violate any applicable state or other jurisdiction's securities or "blue sky" laws or (ii) if the Company is unable to deliver such an opinion, cause the issuance of Option Shares or Other Securities to be registered under the Securities Act. 12.3 Subject to the transfer conditions described in this Section 12, this Option and all rights hereunder are freely transferable, in whole or in part, without restriction by the Company or charge to the Holder, upon surrender of this Option to the Company. 13. Company Books ------------- The Company shall not close its books against the transfer of this Option or of any share of Option Shares issued or issuable upon the exercise of this Option in any manner which interferes with the timely exercise of this Option. The Company shall from time to time as may be necessary use all commercially reasonable efforts to assure that the par value per share of the unissued Option Shares acquirable upon exercise of this Option is at all times equal to or less than the Exercise Price then in effect. 7 14. Conditional Exercise -------------------- Notwithstanding any other provision of this Option, if an exercise of any portion of this Option pursuant to Section 2 of this Option, or a sale of this Option pursuant to Section 3, is to be made in connection with the reorganization, merger, consolidation or sale of the Company (as described in Section 8.2), the exercise of any portion of this Option may, at the election of the Holder, be conditioned upon the consummation of the reorganization, merger, consolidation or sale of the Company, in which case such exercise shall not be deemed to be effective until the consummation of such transaction. 15. Amendment --------- An amendment of this Option shall be effective only if in writing signed by the Company and either (i) signed by a Holder hereof or (ii) consented to by the Holders of those Initial ACIC Agent Options which, if then exercised to the fullest extent provided in Section 1.2 of this Option, would entitle those Holders to purchase a majority of the maximum number of Option Shares (or Other Securities) that could be purchased if all then outstanding Initial ACIC Agent Options were exercised to the fullest extent provided under Section 1.2; provided, however, that no amendment of this Option may be made without the written consent of the Holder hereof for any of the following purposes: (i) to fix an earlier Expiration Date, (ii) to reduce the number of Option Shares or Other Securities acquirable upon the exercise of this Option, (iii) to increase the Exercise Price hereof or (iv) to reduce the percentage of Option Shares required to be represented by the Holders giving their consent to any amendment. Whenever this Option shall be amended without the consent of the Holder hereof, the Company shall file as soon as practicable with its Secretary or an Assistant Secretary, at its principal office, and send to the Holder of this Option of copy of such amendment. No action or proceeding to invalidate an amendment adopted without the consent of the Holder hereof shall be instituted or maintained unless it is commenced within sixty (60) days after such mailing. 16. Governing Law; Jurisdiction and Venue ------------------------------------- This Option shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts without regard to the conflict of laws provisions thereof. Exclusive jurisdiction and venue for any dispute arising under this Option will be in an appropriate federal or state court in the Commonwealth of Massachusetts. 8 IN WITNESS WHEREOF, the Company has executed this Agreement as of the ______ day of ____________________. THE COMMERCE GROUP, INC. By: _______________________________ Its: President and Chief Executive Officer [CORPORATE SEAL] ACCEPTED AND AGREED TO: CLUB NAME _____________________________________ By: _________________________________ Its duly authorized: ________________ Name: _______________________________ 9 Exhibit A To Option ELECTION TO PURCHASE The undersigned hereby elects to exercise this Option and to purchase ________ shares of The Commerce Group, Inc. Common Stock issuable upon the exercise of this Option, and requests that certificates for such shares shall be issued in the name of: _______________________________________ (Name) _______________________________________ (Address) (United States Social Security or other taxpayer identifying number, if applicable) and, if different from above, be delivered to: _______________________________________ (Name) _______________________________________ (Address) and, if the number of Option Shares specified above is not all of the Option Shares issuable upon exercise of this Option, that a Option to purchase the balance of such Option Shares be registered in the name of, and delivered to, the undersigned at the address stated below. Dated:______________ , ____ Name of Registered Owner: _____________________ Address _____________________________ Signature ____________________________ 10 Exhibit B To Option ELECTION TO SELL TO COMPANY The undersigned hereby irrevocably elects to sell this Option to the Company pursuant to Section 3 of this Option, and requests that the Put Payment be sent via wire transfer to the following account: To: _________________________________________ [Name of Bank] _________________________________________ [Address of Bank] Phone: _________________________________________ [Name and Telephone of Contact at Bank] Acct. Name: _________________________________________ [Account Name at Bank] Acct. No.: _________________________________________ [Account Number at Bank] ABA Routing: _________________________________________ [ABA Routing No. of Bank] Dated:_____________, ____ Name of Registered Owner: _____________________________ Address: ______________________________________________ Signature: _____________________________________________ 11 EX-99 4 cgi-991.txt EXHIBIT 99.1 Exhibit 99.1 The Commerce Group, Inc. and Subsidiaries STATEMENT UNDER SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 The undersigned officer of The Commerce Group, Inc. (the "Company") hereby certifies that, as of the date of this statement, the Company's quarterly report on Form 10-Q for the quarter ended March 31, 2003 (the "Report") fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of and for the three-month periods ended March 31, 2003. The purpose of this statement is solely to comply with Title 18, Chapter 63, Section 1350 of the United States Code, as amended by Section 906 of the Sarbanes-Oxley Act of 2002. Date: May 12, 2003 ARTHUR J. REMILLARD, JR. ------------ ------------------------------ Arthur J. Remillard, Jr. Chief Executive Officer 1 EX-99 5 cgi-992.txt EXHIBIT 99.2 Exhibit 99.2 The Commerce Group, Inc. and Subsidiaries STATEMENT UNDER SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 The undersigned officer of The Commerce Group, Inc. (the "Company") hereby certifies that, as of the date of this statement, the Company's quarterly report on Form 10-Q for the quarter ended March 31, 2003 (the "Report") fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of and for the three-month periods ended March 31, 2003. The purpose of this statement is solely to comply with Title 18, Chapter 63, Section 1350 of the United States Code, as amended by Section 906 of the Sarbanes-Oxley Act of 2002. Date: May 12, 2003 GERALD FELS ------------ ------------------------------ Gerald Fels Chief Financial Officer 1 -----END PRIVACY-ENHANCED MESSAGE-----