SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 31, 1999
Commerce Group Corp.
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(Exact name of registrant as specified in its charter)
Delaware 1-7375 39-605862
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(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification
incorporation) No.)
6001 North 91st Street, Milwaukee, Wisconsin 53225-1795
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (414) 462-5310
fax: (414) 462-5312
<PAGE>
ITEM 5. OTHER EVENTS
A. CHANGE OF DOMICILE FROM A DELAWARE CORPORATION TO A WISCONSIN
CORPORATION.
Effective on April 1, 1999 at 12:01 a.m. (Central Time) Commerce Group
Corp., a Delaware Corporation (CGCO Del) was merged into Commerce Group
Corp., a Wisconsin Corporation (CGCO Wis) pursuant to shareholders'
approval at the Annual Shareholders' Meeting held on October 16, 1998.
Simultaneously with the merger, CGCO Wis increased its authorized common
shares, par value $.10 per share, to fifty million (50,000,000) shares.
Its two hundred fifty thousand (250,000) preferred shares, par value $.10
per share, remain the same. There were no substantial changes to the
Articles of Incorporation or to CGCO Wis's By-Laws.
Commerce Group Corp. (Commerce) on January 29, 1999, announced its plans
to have its majority-owned subsidiary Ecomm Group Inc. (Ecomm) enter into
the web portal business. Ecomm's current strategy is to attempt to
acquire or "roll up" Internet web sites and businesses and consolidate
them into a Web Portal. Interactive Business Channel, Inc. (IBC) has
agreed to assist Ecomm in developing an "Internet web portal roll-up
strategy" by acquiring Internet businesses. In this connection, the
President of IBC, Matthew Marcus, has begun serving as the part-time
President of Ecomm.
There can be no assurance that Ecomm's current strategy will be
successful. Ecomm has not yet entered into any agreements for the
acquisition of any web sites, web services or other technology in
connection with the web portal. There is no assurance that it will be
able to enter into contracts for the acquisition of such sites, services
and technology on terms acceptable to Commerce and Ecomm. The Internet
business is highly competitive and there is no assurance that Ecomm's web
portal will attract traffic and generate a profit, even if Ecomm acquires
the web sites, web services and technology on acceptable terms.
B. COMMERCE DELISTED FROM NASDAQ TRADING
On Wednesday, March 31, 1999, Commerce was notified by Nasdaq/Amex that
the Nasdaq Listing Qualifications Panel had decided to delist Commerce's
securities based on public interest concerns and the noncompliance with
the Nasdaq's minimum bid rule. In its decision, the Panel stated that it
was of the opinion that Commerce had failed to adequately disclose the
preliminary nature of its plans to develop the Web portal announced in
its press release on January 29, 1999. The Panel was further of the
opinion that Commerce lacked an adequate basis in fact for the statements
that were contained in the press release. The Panel agreed with the
staff's conclusion that the press release was motivated in large part by
Commerce's desire to satisfy the listing exception by capitalizing on the
market's enthusiasm for the Internet. In its decision, the Panel stated
that it was particularly troubled by the warrant agreement with the IBC
and by the "promotional nature" of the press release.
Commerce intends to appeal the Nasdaq Listing Qualification Panel's
decision by filing such appeal for review with the Nasdaq Listings and
Hearing Review Counsel within the prescribed time frame. There is no
assurance that this appeal will be successful.
Commerce's stock is currently being quoted in the "Pink Sheets." A
market maker has informed Commerce that on April 5, 1999 it filed a form
seeking to sponsor Commerce's stock for trading on the OTCBB. Commerce
has not yet been notified as to whether the NASD OTC Compliance Unit has
decided to clear the security so that the market maker may enter a quote
for the security on the OTCBB or to seek additional information.
A news release dated April 2, 1999 is included with this report and is
identified as Exhibit VI.
<PAGE>
C. LIST OF EXHIBITS FILED WITH THIS FORM 8-K
EXHIBIT I
Articles of Incorporation of CGC of Wisconsin, Inc. (now known as
Commerce Group Corp.) filed with the State of Wisconsin, Department of
Financial Institutions on July 31, 1998.
EXHIBIT II
By-Laws of Commerce Group Corp., A Wisconsin Corporation (formerly CGC of
Wisconsin, Inc.)
EXHIBIT III
Articles of Amendment of CGC of Wisconsin, Inc. relating to the authority
to issue fifty million (50,000,000) shares of the common stock and two
hundred fifty thousand (250,000) shares of the preferred stock both
having a par value of ten cents ($.10 ) per share filed with the State
of Wisconsin, Department of Financial Institutions on March 24, 1999.
EXHIBIT IV
Articles of Merger filed with the State of Wisconsin, Department of
Financial Institutions on March 24, 1999, and effective as of April 1,
1999 12:01 a.m. (Central Time).
EXHIBIT V
Certificate of Merger filed at 9:00 a.m. on March 24, 1999, with the
Office of the Secretary of the State of Delaware and effective at 12:01
a.m. on April 1, 1999.
EXHIBIT VI
April 2, 1999 News Release
This document includes certain "forward-looking statements" within the
meaning of Section 21E of the United States Securities Exchange Act of
1934, as amended. All statements other than statements of historical
fact, included herein, including without limitation, statements regarding
potential mineralization and reserves, exploration results, and future
plans and objectives of Commerce Group Corp. ("Commerce"), are
forward-looking statements that involve various risks and uncertainties.
There can be no assurance that such statements will prove to be accurate,
and actual results and future events could differ materially from those
anticipated in such statements. Important factors could cause actual
results to differ materially from Commerce's expectations. Some of these
factors are set forth in the fourth paragraph of Section A of Item 5 of
this Current Report on Form 8-K and in various sections of other
documents filed from time to time with the United States Securities and
Exchange Commission, the Boston Stock Exchange, Inc., and the National
Association of Security Dealers Automated Systems.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
COMMERCE GROUP CORP.
(Registrant)
/s/ Edward L. Machulak
__________________________________
Date: April 12, 1999 By: Edward L. Machulak, President
EXHIBIT I
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[This document was filed with the State of Wisconsin, Department of
Financial Institutions on July 31, 1998.]
ARTICLES OF INCORPORATION
OF
CGC OF WISCONSIN, INC.
ARTICLE I
The name of the Corporation is CGC of Wisconsin, Inc. The
Corporation is incorporated under the Wisconsin Business Corporation Law,
Chapter 180, Wisconsin Statutes.
ARTICLE II
The address of the registered office of the Corporation in the State
of Wisconsin is 6001 North 91st Street, Milwaukee, Wisconsin 53225, and
the name of its registered agent at such address is Christine M. Wolski.
ARTICLE III
The nature of the business and purposes to be conducted or promoted
by the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the Wisconsin Business Corporation
Law.
ARTICLE IV
Section 4.l The Corporation shall have authority to issue one
thousand (1,000) shares of Common Stock of the par value of ten cents
($.10) per share and one hundred (100) shares of Preferred Stock of the
par value of ten cents (.10) per share.
Section 4.2 Subject to all of the rights of the Preferred Stock,
the holders of Common Stock shall be entitled to receive such dividends
and distributions as from time to time may be declared by the Board of
Directors of the Corporation. The holders of Common Stock shall be
entitled to share ratably upon any liquidation, dissolution or winding up
of the affairs of the Corporation (whether voluntary or involuntary) in
all assets of the Corporation, if any, remaining after payment in full to
the holders of shares of Preferred Stock of the preferential amounts to
which they are entitled. Neither the consolidation nor the merger of the
Corporation with or into any other corporation or corporations, nor the
internal reorganization of the Corporation, nor the sale or transfer by
the Corporation of all or any part of its assets shall be deemed to be a
liquidation, dissolution or winding up of the affairs of the Corporation
for the purposes of this Section 4.2 of this Article Fourth.
Section 4.3 Subject to the provisions of any applicable law or
of the By-Laws of the Corporation, as from time to time amended, with
respect to the fixing of a record date for the determination of
stockholders entitled to vote, the holders of shares of Common Stock
shall be entitled to one vote for each share of such stock held on all
propositions submitted to the vote of the holders of such stock.
<PAGE>
Section 4.4 Except as may be determined by the Board of
Directors of the Corporation pursuant to the authority vested in such
Board under Section 4.5 of this Article IV with respect to the Preferred
Stock, and except as otherwise may be required by applicable law, the
holders of Common Stock and the holders of Preferred Stock shall vote
together as a single class for the election of Directors of the
Corporation and for all other purposes.
Section 4.5 The Preferred Stock shall be issued from time to
time in one or more series with such distinctive serial designations and
(a) may have such voting powers, full or limited, or may be without
voting powers; (b) may be subject to redemption for cash, property or
rights (including securities of any other corporation) at such time or
times, at such price or prices, at such rate or rates, and with such
adjustments; (c) may be entitled to receive dividends (which may be
cumulative or noncumulative) at such rate or rates, on such conditions,
and at such times, and payable in preference to, or in such relation to,
the dividends payable on any other class or classes or any other series
of the same or any other class or classes of stock of the Corporation;
(d) may have such rights upon the liquidation, dissolution or winding up
of the affairs, or upon any other distribution of the assets, of the
Corporation; (e) may be made convertible into, or exchangeable for,
shares of any other class or classes or of any other series of the same
or any other class or classes of stock of the Corporation, at such price
or prices or at such rates of exchange, and with such adjustments; and
(f) shall have such other relative, participating, optional or other
special rights, qualifications, limitations or restrictions thereof, all
as shall hereafter be stated and expressed in the resolution or
resolutions providing for the issue of such Preferred Stock from time to
time adopted by the Board of Directors of the Corporation pursuant to
authority so to do which is hereby vested in the Board.
Section 4.6 The number of authorized shares of any class of
stock of the Corporation may be increased or decreased by the affirmative
vote of the holders of a majority of the stock of the Corporation
entitled to vote, without regard to class.
Section 4.7 Any and all right, title, interest and claim in or
to any dividends declared by the Corporation, whether in cash, stock or
otherwise, which are unclaimed by the stockholder entitled thereto for a
period of six years after the close of business on the payment date,
shall be and be deemed to be extinguished and abandoned; and such
unclaimed dividends in the possession of the Corporation, its transfer
agents or other agents or depositories, shall at such time become the
absolute property of the Corporation, free and clear of any and all
claims of any persons whatsoever.
ARTICLE V
The name and mailing address of the incorporator are John E.
Machulak, 1733 North Farwell Avenue, Milwaukee, Wisconsin, 53202.
ARTICLE VI
In furtherance and not in limitation of the powers conferred by
applicable law, the Board of Directors of the Corporation is expressly
authorized:
To make, alter or repeal the By-Laws of the Corporation.
<PAGE>
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the Corporation.
To set apart out of any of the funds of the Corporation available
for dividends a reserve or reserves for any proper purpose and to abolish
any such reserve in the manner in which it was created.
ARTICLE VII
Section 7.1 Except as set forth in Section 7.4 of this Article VII,
the affirmative vote of the holders of four-fifths of all classes of
stock of the Corporation entitled to vote in elections of directors,
considered for the purposes of this Article Seventh as one class, shall
be required (a) for the adoption of any agreement for the merger or
consolidation of the Corporation with or into any other corporation, or
(b) to authorize any sale, lease or exchange of all or any substantial
part of the assets of the Corporation to, or any sale, lease or exchange
to the Corporation or any subsidiary thereof in exchange for securities
of the Corporation of any assets of, any other corporation, person or
other entity, if, in either case, such other corporation, person or
entity is the beneficial owner, directly or indirectly, of more than 5%
of the outstanding shares of stock of the Corporation entitled to vote in
elections of directors, considered for the purposes of this Article VII
as one class. Such affirmative vote shall be in addition to the vote or
consent of the holders of the stock of the Corporation otherwise required
by law or any agreement to which the Corporation is a party.
Section 7.2 For the purposes of this Article VII, any corporation,
person or other entity shall be deemed to be the beneficial owner of any
shares of stock of the Corporation (i) which it has the right to acquire
pursuant to any agreement, or upon exercise of conversion rights,
warrants or options, or otherwise, whether such right be absolute or
conditional, or (ii) which are beneficially owned, directly or indirectly
(including shares deemed owned through application of clause (i) above),
(a) by any "affiliate" or "associate," as those terms are defined in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934 as in effect on March 31, 1998 or (b) by any corporation,
person or other entity acting in concert with it, or (iii) which are
beneficially owned, directly or indirectly (including shares deemed owned
through application of clause (i) above), by any corporation, person or
other entity with which it or any "affiliate" or "associate" (as defined
above) of it, or any corporation, person or other entity acting in
concert with it or with any "affiliate" or "associate" (as defined above)
of it, has any agreement, arrangement or understanding with respect to
acquiring, holding, voting or disposing of stock of the Corporation. For
the purposes of this Article VII, the outstanding shares of any class of
stock of the Corporation shall include shares deemed owned through
application of clauses (i), (ii) and (iii) above but shall not include
any other shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants, or options, or otherwise.
Section 7.3 On the basis of information known to the
Corporation, the Board of Directors of the Corporation shall make all
determinations under this Article VII, including whether (i) a
corporation, person or other entity beneficially owns more than 5% of the
outstanding shares of stock of the Corporation entitled to vote in
elections of directors, or (ii) a corporation, person or other entity has
the right to acquire shares of stock of the Corporation, or (iii) a
corporation, person or other entity is an "affiliate" or "associate" (as
defined above) of another, or (iv) a corporation, person or other entity
has any agreement, arrangement or understanding with respect to
acquiring, holding, voting or disposing of stock of the Corporation, or
(v) a corporation, person or other entity is acting in concert with any
other corporation, person or other entity; and all such determinations
shall be conclusive.
<PAGE>
Section 7.4 The provisions of this Article VII shall not be
applicable to (i) any merger or consolidation of the Corporation with or
into any other corporation, or any sale, lease or exchange of all or any
substantial part of the assets of the Corporation to, or any sale, lease
or exchange to the Corporation or any subsidiary thereof in exchange for
securities of the Corporation of any assets of, any other corporation,
person or other entity, if (a) such transaction shall have been approved
by a resolution adopted by a number of directors which is one less than
the number of the members of the Board of Directors of the Corporation
holding office at the time such resolution is adopted; or (b) the Board
of Directors of the Corporation shall by resolution have approved a
memorandum of understanding with such other corporation, person, or other
entity with respect to and substantially consistent with such transaction
prior to the time that such other corporation, person or entity shall
have become a holder of more than 5% of the outstanding shares of stock
of the Corporation entitled to vote in elections of directors; or (ii)
any merger or consolidation of the Corporation with, or any sale, lease
or exchange to the Corporation or any subsidiary thereof of any of the
assets of, any other corporation of which a majority of the outstanding
shares of all classes of stock entitled to vote in elections of directors
is owned of record or beneficially by the Corporation and its
subsidiaries.
ARTICLE VIII
The number of Directors which shall constitute the whole Board of
Directors of the Corporation shall be four until fixed by the By-Laws,
and thereafter shall be the number from time to time fixed by the
By-Laws, provided, that such number of Directors shall be not less than
three nor more than twelve. The Directors shall be divided into three
classes: Class I, Class II and Class III. Such classes shall be as
nearly equal in number as possible. The term of office of the initial
Class I Directors shall expire at the annual meeting of stockholders in
1999, the term of office of the initial Class II Directors shall expire
at the annual meeting of stockholders in 2000, and the term of office of
the initial Class III Directors shall expire at the annual meeting of
stockholders in 2001, or thereafter in each case when their respective
successors are elected and qualified. At each annual meeting of
stockholders held hereafter the class of Directors chosen to succeed
those whose terms then expire shall be elected for a term expiring at the
third succeeding annual meeting of stockholders or until their respective
successors in each case are thereafter elected and qualified.
ARTICLE IX
Meetings of stockholders may be held within or without the State of
Wisconsin, as the By-Laws may provide. The books of the Corporation may
be kept at such place or places as may be designated from time to time by
the Board of Directors or in the By-Laws of the Corporation. Elections
of Directors need not be by written ballot unless the By-Laws of the
Corporation shall so provide.
<PAGE>
ARTICLE X
No action which is required by the Wisconsin Business Corporation
Law to be taken at an annual or special meeting of stockholders of the
Corporation, nor any stockholder action which may be taken at any annual
or special meeting of stockholders of the Corporation, shall be taken by
a consent in writing without such an annual or special meeting.
ARTICLE XI
Any contract, transaction or act of the Corporation or of the
Directors of or any committee of the Board of Directors of the
Corporation which shall be ratified by a majority vote of a quorum of the
stockholders entitled to vote thereon at any annual meeting, or at any
special meeting called for such purpose, shall so far as permitted by law
and by this Certificate of Incorporation, be as valid and as binding as
though ratified by every stockholder of the Corporation.
ARTICLE XII
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the
application in a summary way of this Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 128.08,
Wisconsin Statutes, or on the application of trustees in dissolution or
of any receiver or receivers appointed for this Corporation under the
provisions of Section 180.1431, Wisconsin Statutes, order a meeting of
the creditors or class of creditors, and/or of the stockholders or class
of stockholders of this Corporation, as the case may be, to be summoned
in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the
said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders, of
this Corporation, as the case may be, and also on this Corporation.
ARTICLE XVIII
13.1 The Corporation reserves the right to amend, alter or repeal
any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the Wisconsin Business Corporation
Law and by these Articles of Incorporation, and all rights conferred upon
stockholders herein are granted subject to this reservation.
13.2 No amendment to the Articles of Incorporation of the
Corporation shall amend, alter, change or repeal any of the provisions of
Articles VII and VIII unless the amendment effecting such amendment,
alteration, change or repeal shall receive the affirmative vote of the
holders of four-fifths of all classes of stock of the Corporation
entitled to vote in elections of directors, considered for the purposes
of the Articles VII and VIII as one class; provided, however, that this
Section 13.2 shall not apply to any amendment to the Articles of
Incorporation of the Corporation which has been approved by a resolution
adopted by a number of directors which is one less than the number of the
members of the Board of Directors of the Corporation holding office at
the time such resolution is adopted.
<PAGE>
IN WITNESS WHEREOF, I, the undersigned, the incorporator herein
above named, do hereunto set my hand and seal this 27th day of July,
1998.
/s/ John E. Machulak
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John E. Machulak
STATE OF WISCONSIN )
) SS
COUNTY OF MILWAUKEE )
On the 27th day of July, 1998, personally appeared before me,
Elizabeth M. Krueger, a notary public in and for the County and State
aforesaid and a person who is authorized by the laws of the State of
Wisconsin to take acknowledgment of deeds, John E. Machulak, known to me
to be the person who signed the foregoing Articles of Incorporation and
he severally acknowledged that he signed said Articles as his act and
deed.
Given under my hand and seal of office the day and year aforesaid.
/s/ Elizabeth M. Krueger
--------------------------------------
Elizabeth M. Krueger
My Commission expires:
8/27/2000
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NOTARIAL SEAL
This instrument was drafted by:
John E. Machulak, Attorney
Machulak, Hutchinson, Robertson,
O'Dess & Reilly, S.C.
1733 North Farwell Avenue
Milwaukee, Wisconsin 53202
(414) 271-0760
EXHIBIT II
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BY-LAWS
OF
COMMERCE GROUP CORP.
A Wisconsin Corporation
(formerly CGC of Wisconsin, Inc.)
ARTICLE 1
OFFICES
Section 1.1. Registered Office. The registered office of the
Corporation in the State of Wisconsin shall be in Milwaukee County at
6001 North 91st Street, Milwaukee, Wisconsin, 53225.
Section 1.2. Other Offices. The Corporation may also have offices
at such other places both within and without the State of Wisconsin as
the Board of Directors may from time to time determine or the business of
the Corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 2.1. Place of Meetings. Each meeting of the stockholders
of the Corporation shall be held at such place, within or without the
State of Wisconsin, as the Board of Directors may designate, but if no
designation is made then at the office of the Corporation in Milwaukee,
Wisconsin.
Section 2.2. Annual Meetings. An annual meeting of the
stockholders of the Corporation for the purposes of electing Directors
and transacting such other business as may properly be brought before the
meeting shall be held on the third Friday in October at the hour of 3:00
o'clock P.M. (according to the standard of time in legal effect at the
place of the meeting), unless such day is a legal holiday, and, if a
legal holiday, then on the next succeeding Friday which is not a legal
holiday. If, for any reason, said annual meeting shall not be held at the
time herein provided, the same may be held at any time thereafter upon
notice as hereinafter provided or the business thereof may be transacted
at any special meeting called for that purpose.
<PAGE>
Section 2.3. Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the
Chief Operating Officer, or by the President, or by the Board of
Directors and shall be called by the Secretary at the request in writing
of the holders of outstanding shares of stock of the Corporation having
not less than seventy-five per cent (75%) of the voting power of all the
outstanding stock of the Corporation, provided that such request shall
state the purpose or purposes of the proposed meeting and the day and
hour at which such meeting shall be held. The Chief Operating Officer or
the President of the Corporation shall select the place at which any such
special meeting of stockholders shall be held.
Section 2.4. Notice of Stockholders' Meetings. Unless otherwise
prescribed by statute or by the Certificate of Incorporation, notice of
each meeting of stockholders, stating the date, time and place thereof,
and, in the case of special meetings, the purpose or purposes for which
such meeting is called, shall be given to each stockholder entitled to
vote thereat not more than sixty days and at least ten days before the
date of the meeting.
Section 2.5. Lists of Stockholders. The officer who has charge of
the stock ledger of the Corporation shall prepare and make, at least ten
days before each meeting of stockholders, a complete list of the
stockholders entitled to vote thereat, arranged in alphabetical order,
showing the address of and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting,
either at a place within the municipality where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if
not so specified, at the place where said meeting is to be held, and the
list shall be produced and kept at the time and place of meeting during
the whole time thereof, for inspection by any stockholder who may be
present.
<PAGE>
Section 2.6. Quorum and Adjournments. The holders of stock having
a majority of the voting power of the issued and outstanding stock of the
Corporation entitled to vote thereat, when present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided
by statute or by the Certificate of Incorporation. If such quorum shall
not be present or represented at any meeting of the stockholders, the
holders of a majority of the voting power entitled to vote thereat
present in person or represented by proxy at any such meeting shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting unless otherwise required by statute, until a
quorum shall be present or represented. At such adjourned meeting at
which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. Nothing in these By-Laws shall affect the right to adjourn a
meeting from time to time when a quorum is present.
Section 2.7. Voting by Stockholders. When a quorum is present at
any meeting, a majority of the votes cast shall decide any question
brought before such meeting, unless the question is one upon which by
express provision of statute, the Certificate of Incorporation or by
these By-Laws a different vote is required, in which case such express
provision shall govern and control.
<PAGE>
Section 2.8. Vote; Proxies. Each stockholder shall be entitled to
such vote, in person or by proxy, for each share of stock having voting
power held by such stockholder as shall be provided in the Certificate of
Incorporation. No proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period.
Section 2.9. Organization. At any meeting of the stockholders, the
Chief Operating Officer shall act as Chairman. In the absence of the
Chief Operating Officer, the Board of Directors shall appoint a person
to act as Chairman of the meeting, but in default of such appointment, a
person chosen by a majority of the votes entitled to be cast by the
stockholders present at the meeting shall act as Chairman. The Secretary
of the Corporation or, in his absence, an Assistant Secretary, shall be
Secretary of any meeting of stockholders, but in the absence of the
Secretary and an Assistant Secretary, the Chairman of the meeting shall
appoint a Secretary of the meeting. The Chairman of the meeting shall
have the full right to decide, without appeal, the agenda, rules of order
and all other procedural matters regarding and pending before the
meeting.
Section 2.10. Voting by Ballot. Voting on any question or in any
election may be viva voce unless the presiding officer shall order that
voting be by ballot.
ARTICLE 3
DIRECTORS
Section 3.1. Number, Election and Term of Office. The number of
Directors which shall constitute the whole Board shall be five, but such
number may be altered from time to time by amendment of these By-Laws,
provided that such number shall be not less than three nor more than
twelve. The Directors shall be divided into three classes: Class I,
Class II and Class III. Such classes shall be as nearly equal in number
as possible, as provided in the Certificate of Incorporation. The term
of office of Class I Directors shall expire at the annual meeting of
stockholders in 1999; the term of office of Class II Directors shall
expire at the annual meeting of stockholders in 2000; and the term of
office of Class III Directors shall expire at the annual meeting of
stockholders in 2001, or thereafter when their respective successors in
each class are elected and qualified, or until his earlier death or
resignation or removal in a manner permitted by law or these By-Laws.
<PAGE>
At each annual meeting of stockholders, the Directors elected to
succeed those whose terms then expire shall be elected for a term
expiring at the third succeeding annual meeting and thereafter until
their respective successors are elected and qualified. In order to
facilitate the orderly application of the Corporation's retirement policy
for Directors, any Director elected to a particular class by the
stockholders or Directors shall be eligible at any subsequent time or
times to become a member of a different class.
Directors need not be stockholders. One of the Directors may, by
action of the Board, be elected Chairman of the Board. In the event the
offices of President and Chairman of the Board are not held by the same
person, the Chairman of the Board shall be the Chief Operating Officer
and the President shall be the Chief Executive Officer of the Corporation
with the duties, powers and authority as provided in Section 5.4 of
Article 5 of these By-Laws.
Section 3.1(a). Director Emeritus. Members of the Board of
Directors who are Directors of Commerce Group Corp., the predecessor
Delaware Corporation, as of December 5, 1979 and those Directors
thereafter who have been in office for a period of 15 years or more
(combining years with this Corporation and the predecessor Delaware
Corporation ) and do not stand for re-election shall become Directors
Emeriti and each one shall be entitled to receive notice of all meetings
of the Board of Directors and each one shall be entitled to attend all
such meetings and each one shall be entitled to Directors' fees based on
a minimum of twelve (12) meetings per year at the current rate paid, but
not less than one hundred fifty dollars ($150.00) for each meeting and at
a fee of not less than that provided prior to becoming a Director
Emeritus, regardless of attendance at any meeting. Said fee, together
with travel and out-of-pocket expenses, if any, shall be paid monthly on
the date of each regularly scheduled meeting or on the second Monday of
each month. No Director Emeritus shall be entitled to vote on any matter
coming before the Board of Directors, nor shall any Director Emeritus be
counted as a member of the Board for the purpose of determining a quorum
for any purpose whatsoever.
<PAGE>
Section 3.2. Vacancies. Vacancies occurring in the Board of
Directors and newly-created directorships resulting from any increase in
the authorized number of Directors may be filled by a majority of the
Directors then in office, although less than a quorum, or by a sole
remaining Director, and any Director so chosen shall hold office until
the next election of Directors of the class for which he shall have been
chosen and until his successor is duly elected and qualified.
Section 3.3. Powers. The business of the Corporation shall be
managed by its Board of Directors which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by
statute, the Certificate of Incorporation or these By-Laws directed or
required to be exercised or done by the stockholders.
Section 3.4. Place of Meetings; Mode. The place of any meeting of
the Board of Directors may be either within or without the State of
Wisconsin. Members of the Board of Directors or any committee designated
by the Board, including the Executive Committee, may participate in a
meeting of such Board or committee by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at such a meeting.
<PAGE>
Section 3.5. Director, Executive Committee Director and Audit
Committee Meetings. Regular quarterly meetings of the Board of Directors
shall be held at its corporate office on the second Monday of the months
of February, May, August and November of each calendar year commencing at
2:00 p.m. (Central Time). The annual Directors' meeting shall be held on
the date and after the annual shareholders' meeting or as called to by
the Chief Operating Officer, and if absent, then by the President, or any
two Directors on at least eight hours' notice to each Director.
Section 3.6. Regular and Special Meetings. No notice of any such
meeting shall be necessary in order legally to constitute the meeting,
provided a quorum shall be present. In the event such meeting is not
held at such time and place, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the Directors. The Board of Directors may
provide, by resolution, the time and place for the holding of additional
regular meetings without other notice than such resolution. Special
meetings of the Board may be called by the Chief Operating Officer, or by
the President, or any two Directors on at least twenty-four hours' notice
to each Director.
The Directors' Executive Committee meetings shall be held at its
corporate office on the second Monday at 2:00 p.m. (Central Time) in the
months of January, March, April, June, July September, October and
December of each calendar year when the full Board of Directors do not
meet or at such other times as called by the Chairman or any other member
of this committee upon twenty-four hours' notice to each Director.
<PAGE>
The Audit Committee meetings shall be held at its corporate office
immediately after any meeting of the full Board of Directors or at such
other time as called by the Chairman.
Section 3.7. Quorum. At all meetings of the Board of Directors,
one-third of the number of Directors then in office, but in no event less
than two Directors, shall constitute a quorum for the transaction of
business and the act of a majority of the Directors present at any
meeting at which there is a quorum shall be the act of the Board of
Directors except as may be otherwise specifically provided by statute or
by the Certificate of Incorporation. If a quorum shall not be present at
any meeting of the Board of Directors, a majority of the Directors
present thereat may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present.
Section 3.8. Informal Action. Unless otherwise restricted by
statute, the Certificate of Incorporation or these By-Laws, any action
required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if
a written consent thereto is signed by all the Directors or by all the
members of such committee, as the case may be, and such written consent
is filed with the minutes of proceedings of the Board of Directors or of
such committee.
Section 3.9. Presumption of Assent. A Director of the Corporation
who is present at a meeting of the Board of Directors at which action on
any corporate matter is taken and who does not abstain from voting on
such matter by reason of personal interest therein shall be conclusively
presumed to have assented to the action taken unless his dissent shall be
entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as the Secretary of the
meeting before the adjournment thereof. Such right to dissent shall not
apply to a Director who voted in favor of such action.
<PAGE>
Section 3.10. Committees. In addition to the Executive Committee
and Audit Committee for which provision is made by Article 4 of these
By-Laws, the Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more other committees (in addition
to the Executive Committee and Audit Committee), each committee to
consist of one or more of the Directors of the Corporation, which, to the
extent provided in the resolution, shall have and may exercise the powers
of the Board of Directors in the management of the business affairs of
the Corporation and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall
have the power or authority of the Board with respect to amending the
Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation
or a revocation of a dissolution, or amending the By-Laws of the
Corporation; and, unless the resolution or these By-Laws expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock. Such committee or
committees shall have such name or names as may be determined from time
to time by resolution adopted by the Board of Directors and the Board may
designate one or more Directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. Additionally, in the absence or disqualification of any
member of such committee or committees, the member or members thereof
present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
<PAGE>
Section 3.11. Committee Records. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors
when required.
Section 3.12. Compensation. The Directors may be paid their
expenses, if any, of attendance at each meeting of the Board of
Directors. The Board, irrespective of any personal interest of any of
its members, shall have authority to fix compensation of all Directors
for services to the Corporation as directors, officers or otherwise.
Members of special or standing committees may be allowed like
compensation for attending committee meetings.
ARTICLE 4
Section 4.1 Executive Committee: Designation, Term and Vacancies.
The Board, by resolution passed by a majority of the entire Board, may
designate such number of its members, of which the President and Chairman
of the Board of Directors shall be two, as it may from time to time
determine, to constitute an Executive Committee, and may designate one or
more other Directors to serve as alternates for the members thereof in
such order and manner as may be fixed by the Board. The term of office of
each member of the Executive Committee shall be for a period beginning
with the date of his designation and shall continue until the annual
meeting of the Board which will be held after the annual meeting of
stockholders and until his successor shall have been designated;
provided, however, any member of the Executive Committee may be removed
or his office declared vacant at any time by the Board without assigning
(and without there existing) any reason or cause as the basis thereof.
The Chief Operating Officer, and if absent, then the President, or in his
absence, a member of the Executive Committee selected by those present,
shall preside at meetings of the Executive Committee, and the Secretary
of the Corporation or, if the Secretary of the Corporation is not a
member of the Executive Committee, a member of the Executive Committee
designated by the members thereof shall be the Secretary of the Executive
Committee. In the event of the absence from any meeting of the Secretary
of the Executive Committee, the member or members of the Executive
Committee present at the meeting shall select a member of the Executive
Committee to be Secretary of the meeting.
<PAGE>
Section 4.2. Executive Committee: Powers. During the intervals
between meetings of the Board, the Executive Committee shall have, to the
fullest extent permitted by law, but subject to any specific limitation
imposed by the Certificate of Incorporation, these By-Laws or a
resolution of the Board, all of the powers vested in or retained by the
Board (whether or not the Executive Committee is specifically mentioned
in the statute, the provision of the Certificate of Incorporation or
these By-Laws, the resolution or other instrument vesting or retaining
any such power) and such further specific powers as may from time to time
be conferred upon the Execu- tive Committee by resolution of the Board;
and the Executive Committee may exercise such powers in such manner as it
shall deem for the best interests of the Corporation in all cases in
which specific directions shall not have been given by the Board;
provided, however, that the Executive Committee shall not have the power
or authority of the Board in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; but the
Executive Committee shall have the power and authority to distribute and
issue stock if it was previously authorized by the Board of Directors.
All action taken by the Executive Committee shall be subject to revision
or alteration by the Board at the meeting of the Board at which any such
action has been reported to the Board; provided, however, that such
revision or alteration shall not affect any action taken by any officer
or employee of the Corporation, or by any third party, or any rights of
third parties that have vested, in reliance upon any action or direction
of the Executive Committee.
<PAGE>
Section 4.3. Executive Committee: Procedure, Meetings, Voting and
Records. The Executive Committee may prescribe for the conduct of its
business such rules and regulations, not inconsistent with these By-Laws
or with such resolutions for the guidance and control of the Executive
Committee as may from time to time be passed by the Board, as it shall
deem necessary or desirable, including, without limitation, rules fixing
the time and place of meetings and the notice to be given thereof, if
any. A majority of the members of the Executive Committee shall
constitute a quorum. The adoption of any resolution or the taking of any
other action shall require the affirmative vote of a majority of the
whole Executive Committee as from time to time constituted. The
Executive Committee shall keep minutes of its proceedings only when
action is taken by the Executive Committee pursuant to the powers
bestowed upon the Executive Committee by these By-Laws and such action is
not confirmed or ratified by the Board of Directors at its next regularly
scheduled meeting, and it shall report all action taken by it to the
Board at the meeting thereof held next after the taking of such action.
Section 4.4 Audit Committee: Designation, Term and Vacancies. The
Board of Directors will from time to time appoint members to a committee
known as the Audit Committee. The term of office of each member of the
Audit Committee shall be for a period beginning with the date of his
designation and shall continue until the next annual meeting of the Board
of Directors which is to be held after the next annual meeting of
stockholders and until his successor shall have been designated and shall
have qualified; and therefore, the term of the members of the Audit
Committee will expire at the annual Board of Directors' meeting, and/or
until their successors shall have been designated and shall have
qualified; provided, however, any member of the Audit Committee may be
removed or his office declared vacant at any time by the Board without
assigning (and without there existing) any reason or cause as the basis
thereof. A member of the Audit Committee selected by those present,
shall preside at Audit Committee meetings, a member of the Audit
Committee designated by the members thereof shall be the Secretary of the
Audit Committee. In the event of the Chairman's absence from any meeting
then the Secretary of the Audit Committee shall preside and if both are
absent, then the member or members of the Audit Committee present at the
meeting shall select a member of the Audit Committee to be Chairman and
to be the Secretary of the meeting.
<PAGE>
The Audit Committee shall consist of three members of which two
members or hereafter the majority of the Directors shall be independent
Directors. An independent Director shall mean a person other than an
officer or employee of the Company or its subsidiaries or any other
individual having a relationship which in the opinion of the Board of
Directors would interfere with the exercise of independent judgment in
carrying out the responsibilities of a Director. Where a question exists
as to the ability of any particular Director to exercise independent
judgment, it will be incumbent on the Board of Directors to review the
facts to affirmatively conclude that the individual is able,
notwithstanding relationship which may exist, to exercise the requisite
independent judgment.
Section 4.5 Audit Committee: Powers. During the intervals between
meetings of the Board, the Audit Committee shall have, to the fullest
extent permitted by law, but subject to any specific limitation imposed
by the Certificate of Incorporation, these By-Laws or a resolution of the
Board, all of the powers vested in or retained by the Board (whether or
not the Audit Committee is specifically mentioned in the statute, the
provision of the Certificate of Incorporation or the By-Laws, the
resolution or other instrument vesting or retaining any such power) and
such further specific powers as may from time to time be conferred upon
the Audit Committee by resolution of the Board and specifically it shall:
<PAGE>
1. Recommend the firm or person to be employed as the Corporation's
external auditor and review the proposed discharge of any such firm.
2. Review the external auditor's compensation, the proposed terms of
its engagement, and its independence.
3. Review the appointment and replacement of the senior internal
auditing executive, if any.
4. Serve as a channel of communication between the external auditor and
the Board, and between the senior internal auditing executive, if
any, and the Board.
5. Review the results of each external audit of the Corporation, the
report of the audit, any related management letter, management's
responses to recommendations made by the external auditor in
connection with the audit, reports of the internal auditing
department that are material to the Corporation as a whole and
management's responses to those reports.
6. Review the Corporation's annual financial statement, any
certification, report, opinion, or review rendered by the external
auditor in connection with those financial statements, and any
significant disputes between management and the external auditor
that arose in connection with the preparation of those financial
statements.
7. Consider, in consultation with the external auditor and the senior
internal auditing executive, if any, the adequacy of the
Corporation's internal controls.
8. Consider major changes and other major questions of choice
respecting the appropriate auditing and accounting principles and
practices to be used in the preparation of the Corporation's
financial statements, when presented by the external auditor, a
principal senior executive, or otherwise.
9. Monitor the Corporation's codes of conduct and/or ethics and its
code relating to conflicts of interest.
10. Review of all related party transactions on an on-going basis for
the review of potential conflicts of interest.
11. Perform such other functions as may be directed to it by the Board
of Directors.
<PAGE>
and the Audit Committee may exercise such powers in such manner as it
shall deem for the best interest of the Corporation in all cases in which
specific directions shall not have been given by the Board;
Section 4.6 Audit Committee: Procedure, Meetings, Voting and
Records. The Audit Committee may prescribe for the conduct of its
business such rules and regulations, not inconsistent with these By-Laws
or with such resolution for the guidance and control of the Audit
Committee as may from time to time be passed by the Board, as it shall
deem necessary or desirable, including, without limitation, rules fixing
the time and place of meetings and the notice to be given thereof, if
any. A majority of the member of the Audit Committee shall constitute a
quorum. The adoption of any resolution or the taking of any other action
shall require the affirmative vote of a majority of the whole Audit
Committee as from time to time constituted. The Audit Committee shall
keep minutes of its proceedings and it shall report all action taken by
it to the Board of Directors at the meeting thereof held next after the
taking of such action.
ARTICLE 5
OFFICERS
Section 5.1. Designation; Number; Election. The Board of
Directors, at its initial meeting and thereafter at its first regular
meeting after each annual election of Directors, shall choose the
officers of the Corporation. Such officers shall be a Chief Operating
Officer, a President, one or more Vice Presidents (the number thereof to
be determined by the Board of Directors), a Secretary, a Treasurer, and
such Assistant Secretaries and Assistant Treasurers as the Board of
Directors may choose. A Vice President may be designated by the Board of
Directors as the Executive Vice President. The Board of Directors may
appoint such other officers and agents as it shall deem necessary who
shall hold their offices for such terms and shall exercise such powers
and perform such duties as shall be determined from time to time by the
Board.
<PAGE>
Section 5.2. Salaries. The salaries of all officers and agents of
the Corporation chosen by the Board of Directors shall be fixed by the
Board of Directors, and no officer shall be prevented from receiving such
salary by reason of the fact that he is also a Director of the
Corporation.
Section 5.3. Term of Office; Removal; Vacancies. Each officer of
the Corporation chosen by the Board of Directors shall hold office until
the next annual meeting of the Board of Directors and thereafter
following each annual election of Directors, and until his successor is
chosen and qualifies or until his earlier death or resignation or removal
in the manner hereinafter provided. Any officer or agent chosen by the
Board of Directors may be removed at any time by the affirmative vote of
a majority of the Board of Directors whenever in its judgment the best
interests of the Corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person
so removed. Any vacancy occurring in any office of the Corporation at
any time or any new offices may be filled by the Board of Directors for
the unexpired portion of the term.
Section 5.4. Chief Operating Officer. The Chairman of the Board of
Directors shall be the Chief Operating Officer of the Corporation, shall
preside at all meetings of stockholders and of the Board of Directors,
and shall in general supervise the affairs of the Corporation and possess
the same powers as the President, to sign all certificates, contracts,
and other instruments of the Corporation which may be authorized by the
Board. He shall be responsible for establishing over-all corporate
objectives and goals with respect to profit, capital expenditures,
financing, and shall be responsible for assuring that Company plans and
policies are pursued, and shall nominate officers of the Company to the
Board of Directors and appoint all members of all committees of the Board
of Directors, subject to ratification by the Board, and for taking such
other duties and responsibilities as may be directed by the Board of
Directors from time to time.
<PAGE>
Section 5.5. President. The President shall, subject to the
authority of the Chairman of the Board, or the Chief Operating Officer,
in general supervise and manage the business and affairs of Corporation.
He may sign contracts and other documents within the ordinary scope of
business and may sign, with the Secretary or an Assistant Secretary or
any other proper officer of the Corporation thereunto authorized by the
Board of Directors, certificates of stock of the Corporation, any deeds,
mortgages, bonds, contracts, or other instruments which the Board of
Directors has authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the Board
of Directors or by these By-Laws to some other officer or agent of the
Corporation, or shall be required or permitted by law to be otherwise
signed or executed; and in general shall perform all duties usually
incident to the office of President and such other duties as may be
prescribed by the Board of Directors from time to time.
Section 5.6. The Vice Presidents. In the absence of the Chief
Operating Officer, or the President, or in the event of his disability,
or inability to act, or to continue to act, the Executive Vice President,
or in the event of a vacancy in the office of the Executive Vice
President, or in the event that no Executive Vice President has been
designated by the Board of Directors, or in the event of the absence of
the Executive Vice President, or his disability, or his inability to act,
or to continue to act, the Vice Presidents in the order designated by the
Board of Directors, or, in the absence of such designation, in the order
each shall have respectively held the office of Vice President the
longest period of time, shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. The Executive Vice President or any
Vice President may sign, with the Secretary or an Assistant Secretary or
any other proper officer of the Corporation thereunto authorized by the
Board of Directors, certificates for shares of stock of the Corporation;
and shall perform such other duties as from time to time may be assigned
to him by the Chief Operating Officer, by the President, or by the Board
of Directors.
<PAGE>
Section 5.7. The Treasurer. If required by the Board of Directors,
the Treasurer shall give a bond for the faithful discharge of his duties
in such sum and with such surety or sureties as the Board of Directors
shall determine. He shall: (a) have charge and custody of and be
responsible for all funds and securities of the Corporation; receive and
give receipts for moneys due and payable to the Corporation from any
source whatsoever, and deposit all such moneys in the name of the
Corporation in such banks, trust companies or other depositaries as shall
be selected in accordance with the provisions of Article 8 of these
By-Laws; and (b) in general perform all the duties usually incident to
the office of Treasurer and such other duties as from time to time may be
assigned to him by the Chief Operating Officer, by the President, or by
the Board of Directors.
Section 5.8. The Secretary. The Secretary shall: (a) keep the
minutes of meetings of the stockholders, of the Board of Directors and of
committees of the Board of Directors in one or more books provided for
that purpose; (b) see that all notices of meetings of stockholders and of
special meetings of the Board of Directors are duly given in accordance
with the provisions of these By-Laws or as required by statute; (c) be
custodian of the corporate records and of the seal of the Corporation and
see that the seal of the Corporation is affixed to all documents, the
execution of which on behalf of the Corporation under its seal is duly
authorized in accordance with the provisions of these By-Laws; (d) keep a
register of the post office address of each stockholder which shall be
furnished to the Secretary by such stockholder; (e) sign with the Chief
Operating Officer, the President, the Executive Vice President, or a Vice
President, certificates of stock of the Corporation; (f) have general
charge of the stock ledger books of the Corporation; and (g) in general,
perform all duties usually incident to the office of Secretary and such
other duties as from time to time may be assigned to him by the Chief
Operating Officer, the President, or by the Board of Directors.
<PAGE>
Section 5.9. Assistant Treasurers and Assistant Secretaries. The
Assistant Treasurers shall, if required by the Board of Directors, give
bonds for the faithful discharge of their duties in such sums and with
such sureties as the Board of Directors shall determine. The Assistant
Secretaries may sign with the Chief Operating Officer, the President, the
Executive Vice President, or a Vice President, certificates of stock of
the Corporation. The Assistant Treasurers and Assistant Secretaries, in
general, shall perform such duties as shall be assigned to them by the
Treasurer, or the Secretary, respectively, or by the Chief Operating
Officer, or the President, or the Board of Directors.
ARTICLE 6
INDEMNIFICATION
Section 6.1. Indemnification of Directors and Officers. The
Corporation shall, to the fullest extent to which it is empowered to do
so by the General Corporation Law of Wisconsin or any other applicable
laws, as may from time to time be in effect, indemnify any person who was
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was
a director or officer of the Corporation, or the predecessor Delaware
Corporation, Commerce Group Corp., or is or was serving at the request of
the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, against all
expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding.
<PAGE>
Section 6.2. Contract with the Corporation. The provisions of this
Article 6 shall be deemed to be a contract between the Corporation and
each director or officer who serves in any such capacity at any time
while this Article and the relevant provisions of the General Corporation
Law of Wisconsin or other applicable law, if any, are in effect, and any
repeal or modification of any such law or of this Article 6 shall not
affect any rights or obligations then existing with respect to any state
of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought or threatened based in whole or in part
upon any such state of facts.
Section 6.3. Indemnification of Other Persons. Persons not
expressly covered by the foregoing provisions of this Article 6, such as
those (a) who are or were employees or agents of the Corporation, or are
or were serving at the request of the Corporation as employees or agents
of another corporation, partnership, joint venture, trust or other
enterprise, or (b) who are or were directors, officers, employees or
agents of a constituent corporation absorbed in a consolidation or merger
in which the Corporation was the resulting or surviving Corporation, or
who are or were serving at the request of such constituent corporation as
directors, officers, employees or agents of another corporation,
partnership, joint venture, trust or other enterprise, may be indemnified
to the extent authorized at any time or from time to time by the Board of
Directors.
Section 6.4. Other Rights of Indemnification. The indemnification
provided or permitted by this Article 6 shall not be deemed exclusive of
any other rights to which those indemnified may be entitled by law or
otherwise, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such person.
<PAGE>
Section 6.5. Indemnification, Reimbursement, and Payments. Any
indemnification shall be immediately payable and due to any director,
officer, or other person when any obligation for which indemnification is
provided by said Article 6 becomes due from or is paid by that director,
officer, or other person.
ARTICLE 7
CERTIFICATES OF STOCK AND THEIR TRANSFER
Section 7.1. Form and Execution of Certificates. Every holder of
stock in the Corporation shall be entitled to have a certificate, signed
by, or in the name of the Corporation by, the Chief Operating Officer,
the President, the Executive Vice President or a Vice President, and by
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation, certifying the number of shares owned by
him in the Corporation. Such certificates shall be in such form as may be
determined by the Board of Directors. During any period while more than
one class of stock of the Corporation is authorized there will be set
forth on the face or back of the certificates which the Corporation shall
issue to represent each class or series of stock a statement that the
Corporation will furnish, without charge to each stockholder who so
requests, the designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof
and the qualifications, limitations or restrictions of such preferences
and/or rights. Where a certificate is countersigned (1) by a transfer
agent other than the Corporation or its employee, or, (2) by a registrar
other than the Corporation or its employee, any other signature on such
certificate may be facsimile. In case any officer, transfer agent or
registrar who has signed, or whose facsimile signature has been used on,
any such certificate shall cease to be such officer, transfer agent or
registrar of the Corporation before such certificate is issued by the
Corporation, such certificate may nevertheless be issued and delivered by
the Corporation as though the officer, transfer agent or registrar who
signed such certificate or whose facsimile signature was used thereon had
not ceased to be such officer, transfer agent or registrar of the
Corporation.
<PAGE>
Section 7.2. Replacement Certificates. The Board of Directors may
direct a new certificate to be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate, the Board of Directors may,
in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as it shall
require and/or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed. The Board of Directors may delegate its authority to
direct the issuance of new replacement stock certificates to the transfer
agent or agents of the Corporation upon such conditions precedent as may
be prescribed by the Board.
Section 7.3. Transfers of Stock. Upon surrender to the Corporation
or the transfer agent of the Corporation of a certificate for stock duly
endorsed or accompanied by proper evidence of succession, assignment, or
authority to transfer, it shall be the duty of the Corporation to issue a
new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books; provided the
Corporation or a transfer agent of the Corporation shall not have
received a notification of adverse interest and that the conditions of
Section 8-401 of Title 5A of the Delaware Code and Wisconsin law have
been met.
<PAGE>
Section 7.4. Fixing Date for Determination of Stockholders of
Record. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of stock, or,
for the purpose of any other lawful action, the Board of Directors may
fix, in advance, a record date, which shall not be more than sixty nor
less than ten days before the date of such meeting, nor more than sixty
days prior to any other action, and in such case such stockholders and
only such stockholders as shall be stockholders of record on the date so
fixed shall be entitled to such notice of, and to vote at, such meeting
and any adjournment thereof, or to receive payment of such dividend, or
to receive such allotment of right, or to exercise such right, or to give
such consent, as the case may be, notwithstanding the transfer of any
stock on the books of the Corporation after any such record date fixed as
aforesaid.
Section 7.5. Registered Stockholders. The Corporation shall be
entitled to treat the holder of record (according to the books of the
Corporation) of any share or shares of stock as the holder in fact
thereof and shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other party
whether or not the Corporation shall have express or other notice
thereof, except as expressly provided by the laws of Wisconsin.
Section 7.6. Transfer Agents and Registrars. The Board of
Directors may from time to time appoint a transfer agent or a registrar
or both in one or more cities; may require all certificates evidencing
shares of stock of the Corporation to bear the signatures of a transfer
agent or a registrar; and may provide that such certificates shall be
transferable in more than one city.
<PAGE>
ARTICLE 8
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 8.1. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to specific
instances.
Section 8.2. Loans. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name
unless authorized by a resolution of the Board of Directors. Such
authority may be general or confined to specific instances.
Section 8.3. Checks, Drafts and Other Instruments. All checks,
drafts or other orders for the payment of money, notes or other evidences
of indebtedness, issued in the name of the Corporation shall be signed by
such officer or officers, or by such agent or agents of the Corporation
and in such manner as from time to time may be determined by resolution
of the Board of Directors.
Section 8.4. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositaries as the
Board of Directors may select.
ARTICLE 9
GENERAL PROVISIONS
Section 9.1. Dividends. Subject to any provisions of any
applicable statute or of the Certificate of Incorporation, dividends may
be declared upon the capital stock of the Corporation by the Board of
Directors at any regular or special meeting thereof; and such dividends
may be paid in cash, property, or shares of the capital stock of the
Corporation.
<PAGE>
Section 9.2. Reserves. Before payment of any dividends, there may
be set aside out of any funds of the Corporation available for dividends
such sum or sums as the Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies,
or for equalizing dividends, or for repairing or maintaining any property
of the Corporation, or for such other purpose as the Directors shall
think conducive to the interests of the Corporation, and the Directors
may modify or abolish any such reserve in the manner in which it was
created.
Section 9.3. Voting of Stock of Other Corporations. In the absence
of specific action by the Board of Directors, the Chief Operating
Officer, or the President shall have authority to represent the
Corporation with respect to, and to vote on behalf of the Corporation,
the securities of other corporations, both domestic and foreign, held by
the Corporation.
Section 9.4. Notices. Notices to Directors and stockholders shall
be in writing and delivered personally or mailed to the Directors or
stockholders at their addresses appearing on the books of the
Corporation. Notice given by mail shall be deemed to be given at the
time when the same shall be mailed. Notice to Directors may also be
given (a) by personal delivery, (b) by telegram or cable, and in such
case shall be deemed to be given when communicated to the telegraph
company, (c) by telephone or similar communications equipment, and in
such case shall be deemed to be given when received, or (d) by any other
means of transmission giving similar notice.
<PAGE>
Section 9.5. Waiver of Notice. Whenever any notice is required to
be given under the provisions of any statute or of the Certificate of
Incorporation or of these By-Laws, a waiver thereof in writing, signed by
the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent thereto. Attendance
or presence of any person at any meeting of stockholders or Directors
shall constitute a waiver of notice of such meeting, except when the
stockholder or director attends a meeting only for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any
business because a meeting is not lawfully called or convened. Except as
required by statute, Certificate of Incorporation or these By-Laws,
neither the business to be transacted at, nor the purpose of, any regular
or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 9.6. Fiscal Year. The fiscal year of the Corporation shall
begin on the first day of April in each year and end on the last day of
the next following March.
Section 9.7. Seal. The corporate seal shall have inscribed thereon
the name of the Corporation and the words "Corporate Seal, Wisconsin."
The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise applied.
Section 9.8. Severability; Amendments. If any provision of these
By-Laws, or its application thereof to any person or circumstances, is
held invalid, the remainder of these By-Laws and the application of such
provision to other persons or circumstances shall not be affected
thereby. These By-Laws may be altered or repealed at any regular or
special meeting of the Board of Directors.
*****
EXHIBIT III
-----------
[This document was filed with the State of Wisconsin, Department of
Financial Institutions on March 24, 1999.]
State of Wisconsin
Department of Financial Institutions
ARTICLES OF AMENDMENT
OF
CGC OF WISCONSIN, INC.
Resolved, that Article IV, Section 4.1 of the Articles of
Incorporation of CGC of Wisconsin, Inc., filed on July 31, 1998, is
amended to read as follows:
"Section 4.l The Corporation shall have authority to issue
fifty million (50,000,000) shares of Common Stock of the par value
of ten cents ($.10) per share and two hundred fifty thousand
(250,000) shares of Preferred Stock of the par value of ten cents
(.10) per share."
This amendment was adopted on October 16, 1998, by the Board of
Directors and Incorporators of the Corporation in accordance with secs.
180.1002 and 180.1005, Wis. Stats.
Executed on this 22nd day of March, 1999.
/s/ Edward L. Machulak
_______________________________
Edward L. Machulak,
President of CGC of Wisconsin, Inc.
This document was drafted by John E. Machulak, Attorney.
Please return to:
John E. Machulak, Attorney
Machulak, Hutchinson, Robertson, O'Dess & Reilly, S.C.
1733 North Farwell Avenue
Milwaukee, Wisconsin 53202
(414) 271-0760
EXHIBIT IV
----------
[This document was filed with the State of Wisconsin, Department of
Financial Institutions on March 24, 1999.]
State of Wisconsin
Department of Financial Institutions
ARTICLES OF MERGER
(Domestic, for-profit Corporation with Foreign, for-profit corporation)
A. Name and state of incorporation of the merging (non-surviving)
corporation:
Name: Commerce Group Corp.
State of Incorporation: State of Delaware
B. Name (prior to any amendment in the Plan of Merger to change the
name) and state of incorporation of the surviving corporation:
Name: CGC of Wisconsin, Inc.
State of Incorporation: State of Wisconsin
C. The adopted Plan of Merger (the "Plan") is attached as Exhibit A.
D. The Plan was approved by each foreign corporation that is a party to
the merger in accordance with the laws of the state under which it
was incorporated, and by each domestic corporation that is a party
to the merger in accordance with Sec. 180.1103, Wis. Stats.
E. These articles of merger, when filed, shall be effective as of 12:01
a.m. on April 1, 1999.
Executed on March 22, 1999 by the surviving corporation on behalf of
all parties to the merger.
/s/ Edward L. Machulak
_______________________________
Edward L. Machulak,
President of Commerce Group Corp.
President of CGC of Wisconsin, Inc.
This document was drafted by John E. Machulak, Attorney.
Please return to:
John E. Machulak, Attorney
Machulak, Hutchinson, Robertson, O'Dess & Reilly, S.C.
1733 North Farwell Avenue
Milwaukee, Wisconsin 53202
(414) 271-0760
<PAGE>
[This document was filed as Exhibit A to the Articles of Merger (see
EXHIBIT IV) with the State of Wisconsin, Department of Financial
Institutions on March 24, 1999.]
Exhibit A
PLAN OF MERGER
THIS PLAN OF MERGER ("Plan of Merger"), has been adopted by Commerce
Group Corp., a Delaware corporation ("CMG Delaware"), and CGC of
Wisconsin, Inc., a Wisconsin corporation ("CGC Wisconsin"):
1.1 The Merger. Subject to the terms and conditions of this Plan of
Merger, at the Effective Time (as defined below), CMG Delaware will be
merged with and into CGC Wisconsin, in accordance with the applicable
provisions of the Wisconsin Business Corporation Law ("WBCL") and the
applicable provisions of the Delaware General Corporation Law ("DGCL")
and Section 368(a) of the Internal Revenue Code of 1986.
(a) The merging (non-surviving) corporation is Commerce Group
Corp., a Delaware corporation.
(b) The surviving corporation (before any amendment) is CGC of
Wisconsin, Inc., a Wisconsin corporation.
1.02 Effective Time of the Merger. The Merger shall become effective
as of 12:01 a.m. (Central Time) on April 1, 1999 (the "Effective Time").
The Articles of Merger filed with the Department of Financial
Institutions of Wisconsin and the Certificate of Merger filed with the
Secretary of State of Delaware will provide that the Merger shall become
effective as of the Effective Time.
1.03 Effects of the Merger.
(a) At the Effective Time, (i) the separate existence of CMG Delaware
shall cease, and CMG Delaware shall be merged with and into CGC Wisconsin
as provided in Section 180.1106 of the WBCL and Section 252(c), or other
applicable provisions of the DGCL (CMG Delaware and CGC Wisconsin are
sometimes referred to herein as the "Constituent Corporations," and CGC
Wisconsin, after consummation of the Merger, is sometimes referred to
herein as the "Surviving Corporation"); (ii) the Articles of
Incorporation of CGC Wisconsin (as amended) in effect immediately prior
to the Effective Time shall continue without change (until further
amended in accordance with applicable law) as the Articles of
Incorporation of the Surviving Corporation except that the name of the
Surviving Corporation shall be automatically amended, effective as of the
Effective Time, from "CGC Wisconsin, Inc." to "Commerce Group Corp.";
(iii) the By-Laws of CGC Wisconsin in effect immediately prior to the
Effective Time shall continue without change as the By-Laws of the
Surviving Corporation; and (iv) the members of the Board of Directors and
the officers of CGC Wisconsin immediately prior to the Effective Time
shall continue without change as the directors and officers of the
Surviving Corporation (in each case until such time as their respective
successors are duly elected or their earlier resignation, death,
retirement or removal).
<PAGE>
(b) In accordance with Section 180.1106 of the WBCL and Section 259
of the DGCL, at and after the Effective Time, the Surviving Corporation
shall possess all the rights, privileges, powers and franchises of a
public as well as of a private nature, and be subject to all the
restrictions, disabilities and duties, of each of the Constituent
Corporations; and all and singular rights, privileges, powers and
franchises of each of the Constituent Corporations, and all property,
real, personal and mixed, and all debts due to either of the Constituent
Corporations on whatever account, as well as for stock subscriptions and
all other things in action or belonging to each of the Constituent
Corporations, shall be vested in the Surviving Corporation; and all
property, rights, privileges, powers and franchises, and all and every
other interest, shall be thereafter as effectually the property of the
Surviving Corporation as they were of the Constituent Corporations, and
the title to any real estate vested, by deed or otherwise, in either of
the Constituent Corporations shall not revert or be in any way impaired;
but all rights of creditors and all liens upon any property of either of
the Constituent Corporations shall be preserved unimpaired, and all
debts, liabilities and duties of the Constituent Corporations shall
thereafter attach to the Surviving Corporation, and may be enforced
against it to the same extent as if said debts and liabilities had been
incurred or contracted by it. Any action or proceeding, whether civil,
criminal, administrative or investigatory, pending by or against either
Constituent Corporation shall be prosecuted as if the Merger had not
taken place, or the Surviving Corporation may be substituted as a party
in such action or proceeding in place of any Constituent Corporation.
ARTICLE 2
Effect of the Merger on the Capital Stock
Of the Constituent Corporations
2.01(a) Effect on CMG Delaware Common Stock. As of the Effective
Time, by virtue of the Merger and without any action on the part of the
Constituent Corporations or the stockholders of CMG Delaware, all shares
of CMG Delaware Common Stock issued and outstanding or held in treasury,
if any, immediately prior to the Effective Time shall automatically be
converted into an equal number of fully paid and non-assessable shares
(except as provided in Section 180.0622(2)(b) of the WBCL) of CGC
Wisconsin Common Stock, and certificates representing such shares of CMG
Delaware Common Stock issued and outstanding or held in treasury, if any,
immediately prior to the Effective Time shall from and after the
Effective Time represent the number of shares of CGC Wisconsin Common
Stock into which such shares shall have been converted.
(b) Effect on CMG Delaware Options and Other Rights. At the Effective
Time, each option or other right granted by CMG Delaware to purchase or,
by contract, to receive CMG Delaware Common Stock (under or subject to
any stock option plan or any other agreement of CMG Delaware) and
outstanding immediately prior to the Effective Time shall, by virtue of
the Merger and without any action on the part of the holder thereof, be
converted into and become a stock option or right to purchase or receive,
upon the same terms and conditions, the number and kind of shares of the
Surviving Corporation's capital stock equal to the number and kind of
shares of CMG Delaware capital stock that the holder thereof would have
received had such holder exercised the option or right in full
immediately prior to the Effective Time (whether or not such option or
right was then exercisable).
<PAGE>
2.02 Effect on CMG Delaware Plans.
(a) At the Effective Time, each employee or director benefit plan or
incentive compensation plan to which CMG Delaware is a party shall be
assumed by, and continue to be the plan of, the Surviving Corporation.
(b) To the extent any of the aforementioned plans of CMG Delaware or
any of its subsidiaries provides for the issuance or purchase of, or
otherwise relates to, CMG Delaware Common Stock or other capital stock of
CMG Delaware, after the Effective Time such plans shall be deemed to
provide for the issuance or purchase of, or otherwise relate to, CGC
Wisconsin Common Stock or other capital stock of CGC Wisconsin upon the
same terms and conditions.
2.03 Effect on CGC Wisconsin Common Stock. As of the Effective Time,
by virtue of the Merger and without any action on the part of the
Constituent Corporations or the shareholder of CGC Wisconsin, all shares
of CGC Wisconsin Common Stock issued and outstanding or held in treasury,
if any, immediately prior to the Effective Time shall no longer be issued
or outstanding and shall automatically be canceled and retired and shall
cease to exist, and each holder of a certificate representing any such
shares shall cease to have any rights with respect thereto.
ARTICLE 3
Shareholder Approval
3.01 Shareholder Approval. This Plan of Merger and the Merger herein
contemplated have been approved by the shareholders of each of the
parties hereto in accordance with the applicable provisions of law.
ARTICLE 4
Termination; Amendment
4.01 Termination. This Plan of Merger may be terminated and the
Merger abandoned by the Boards of Directors of CMG Delaware and CGC
Wisconsin at any time until the first to occur of the filing of Articles
of Merger with the Department of Financial Institutions of Wisconsin or
the filing of a Certificate of Merger with the Secretary of State of
Delaware.
4.02 Amendment. Subject to the following sentence, this Plan of
Merger may be amended, modified or supplemented by the Constituent
Corporations at any time until the first to occur of the filing of
Articles of Merger with the Department of Financial Institutions of
Wisconsin or the filing of a Certificate of Merger with the Secretary of
State of Delaware. Notwithstanding the foregoing, amendments,
modifications or supplements of this Plan of Merger that are required by
the Secretary of State of Wisconsin or the Secretary of State of Delaware
and that do not materially and adversely affect the rights, benefits and
obligations of any Constituent Corporation may be made unilaterally by
the Constituent Corporation filing this Plan of Merger with such office.
<PAGE>
ARTICLE 5
Amendment of Surviving Corporation's Articles of Incorporation
5.01 Change of Name. Article I of the Articles of Incorporation of
CGC of Wisconsin, Inc. is amended to read as follows:
"The name of the Corporation is Commerce Group Corp. The
Corporation is incorporated under the Wisconsin Business Corporation
Law, Chapter 180, Wisconsin Statutes."
On this 22nd day of March, 1999, the undersigned President of
Commerce Group Corp., a Delaware corporation, and CGC of Wisconsin, Inc.,
certifies that both corporations have adopted the foregoing Plan of
Merger.
/s/ Edward L. Machulak
_______________________________
Edward L. Machulak,
President of Commerce Group Corp.
President of CGC of Wisconsin, Inc.
This document was drafted by:
John E. Machulak, Attorney.
Machulak, Hutchinson, Robertson, O'Dess & Reilly, S.C.
1733 North Farwell Avenue
Milwaukee, Wisconsin 53202
(414) 271-0760
EXHIBIT V
---------
[This document was filed with the State of Delaware, Secretary of State,
Division of Corporations at 9:00 a.m. on March 24, 1999.]
State of Delaware
Office of the Secretary of State
CERTIFICATE OF MERGER
CGC of Wisconsin, Inc., the corporation resulting from the merger
described below, files this Certificate of Merger pursuant to Title 8,
Section 252 of the Delaware General Corporation Law. The undersigned
officer of the Corporation certifies:
1. The name and state of incorporation of each of the constituent
corporations is:
(a) the merging (non-surviving) corporation:
Name: Commerce Group Corp.
State of Incorporation: State of Delaware
(b) the surviving corporation (prior to any amendment in the Plan
of Merger to change the name):
Name: CGC of Wisconsin, Inc.
State of Incorporation: State of Wisconsin
2. An agreement of merger has been approved, adopted, certified,
executed and acknowledged by each of the constituent corporations in
accordance with the laws of the State of Wisconsin and the State of
Delaware. The merger is effective as of 12:01 a.m. on April 1, 1999.
3. The name of the surviving corporation is CGC of Wisconsin,
Inc., a Wisonsin Corporation whose name shall be changed to Commerce
Group Corp.
4. Upon merger of the constituent corporations, Article I of the
Articles of Incorporation of CGC of Wisconsin, Inc., the surviving
corporation, is amended to read as follows:
"The name of the Corporation is Commerce Group Corp."
5. A copy of the Articles of Incorporation of CGC of Wisconsin,
Inc., the surviving corporation, is attached to this Certificate.
[Reference is made to Exhibit I of this Form 8-K.]
6. The executed agreement of merger between the constituent
corporations is on file at the office of CGC of Wisconsin, Inc., the
surviving corporation (which will be named Commerce Group Corp.), at 6001
North 91st Street, Milwaukee, Wisconsin 53225.
<PAGE>
7. A copy of the agreement of merger will be furnished by the
surviving corporation, on request and without cost, to any stockholder of
any constituent corporation.
8. The corporation surviving or resulting from the merger is not a
corporation of the State of Delaware.
9. The CGC of Wisconsin, Inc., the surviving corporation, agrees
that it may be served with process pursuant to the provisions of Title 8,
Section 252(d) of the Delaware Code. Process received by the Secretary
of State should mail a copy of such process to Commerce Group Corp., 6001
North 91st Street, Milwaukee, Wisconsin 53225.
Executed this 22nd day of March, 1999 by the surviving corporation
on behalf of all parties to the merger.
/s/ Edward L. Machulak
_______________________________
Edward L. Machulak,
President of Commerce Group Corp.
President of CGC of Wisconsin, Inc.
Please return to:
John E. Machulak, Attorney
Machulak, Hutchinson, Robertson, O'Dess & Reilly, S.C.
1733 North Farwell Avenue
Milwaukee, Wisconsin 53202
(414) 271-0760
EXHIBIT VI
----------
COMMERCE GROUP CORP.
6001 North 91st Street
Milwaukee, Wisconsin 53225
Tel: (414) 462-5310 Fax: (414) 462-5312
E-Mail: [email protected]
Website: www.commercegroupcorp.com
Contact Investor Relations
April 2, 1999
_________________________________________________________________________
Trading Halt Lifted and Merger
On December 7, 1998, the Company was granted an exception by the Nasdaq
Listing Qualifications Panel (the "Panel), through February 10, 1999, to
evidence compliance with the $1.00 per share minimum bid price
requirement for continued listing on The Nasdaq SmallCap Market.
Subsequent to the Panel's decision, staff raised public interest
concerns, pursuant to Nasdaq Marketplace Rules 4300 and 4330(a)(3), and
requested that the exception be terminated and the Company's securities
be delisted from The Nasdaq SmallCap Market. Based on the foregoing, the
Panel determined to reconsider the original decision. A new hearing was
held on March 10, 1999.
On March 31, 1999, the Panel issued its decision. In its decision the
Panel stated that it was of the opinion that the Company failed to
adequately disclose the preliminary nature of its plans to develop the
proposed Web portal announced in its press release on January 29, 1999.
The Panel was further of the opinion that the Company lacked an adequate
basis in fact for the statements that were contained in the press
release. The Panel agreed with staff's conclusion that the press release
was motivated in large part by the Company's desire to satisfy the
listing exception by capitalizing on the market's enthusiasm for the
Internet. In its decision, the Panel stated that it was particularly
troubled by the warrant agreement with The Interactive Business Channel
(IBC) and by the promotional nature of the press release. Based on the
foregoing, the Panel determined to revoke the December 7, 1998 exception
granted to the Company. The Panel determined that based on the facts and
circum stances in the entirety, in order to reserve and strengthen the
quality of and public confidence in The Nasdaq Stock Market, and in order
to protect prospective investors, the integrity of the Nasdaq Stock
Market and the public interest, the Company's securities will be delisted
from The Nasdaq Stock Market effective with the close of business on
March 31, 1999. The Panel's decision may be reviewed by The Nasdaq
Listing and Hearing Review Counsel.
The Company disagrees with the conclusions of the Panel, and has attached
complete copies of its agreements with IBC as Exhibits to its Form 8-K
filed on February 8, 1999. Furthermore, the Company believes that it
promptly disclosed the preliminary nature of its business plans with the
IBC in its press release and that its press release was accurate. At
this time the Company plans to appeal the Panel's decision.
The Company also announced that effective April 1, 1999,
contemporaneously with the beginning of its new fiscal year, it has
completed the Plan of Merger approved by its shareholders at the
Company's last annual meeting held on October 16, 1998. Under the Plan
of Merger, Commerce Group Corp., a Delaware corporation, has been merged
into a Wisconsin corporation which will have the same name of Commerce
Group Corp. As part of this merger, the Company has increased its
authorized common shares, par value $.10 per share, to fifty million
(50,000,000) shares. Its two hundred fifty thousand (250,000) preferred
shares, par value $.10 per share, remain the same. There were no
substantial changes to the Articles of Incorporation or to the Company's
By-Laws. With an increase in its authorized common shares, the Company
positions itself for a merger or other strategic alliances.
Statements in this release are made pursuant to the "Safe Harbor"
provisions of the Private Securities Litigation Reform Act of 1995.
Investors are cautioned that such forward-looking statements involve risk
and uncertainties, including without limitation, continued acceptance of
the company's services, increased levels of competition for the company,
and dependence on the performance of the management of the company.
