This document contains 20 pages. The exhibit index is located on page 7.
As filed with the Securities and Exchange Commission on April 26, 2002
Registration No. 333
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE COMMERCE GROUP, INC.
(Exact name of issuer as specified in its charter)
Massachusetts 04-2599931
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
211 Main Street, Webster, MA 01570
(Address of principal executive offices)
THE COMMERCE GROUP, INC.
1994 MANAGEMENT INCENTIVE PLAN
(Full title of plan)
Arthur J. Remillard, Jr. Copy to:
The Commerce Group, Inc. James A. Ermilio, Esq.
211 Main Street The Commerce Group, Inc.
Webster, MA 01570 211 Main Street
(Name, address and telephone (508) 943-9000
number of agent for service)
CALCULATION OF REGISTRATION FEE
Title of each class Proposed maximum Proposed maximum Amount of
of securities to Amount being offering price aggregate offering registration
be registered registered (1) per share price fee
Common Stock,
$0.50 par value 2,500,000 $30.8563(2) $77,140,855.00(2) $7,096.96(2)
(1) This Registration Statement covers 2,500,000 shares of Common Stock which may be
issued under the Registrant's 1994 Management Incentive Plan (the "Plan"). In
addition, this Registration Statement also covers an indeterminate number of
additional shares of Common Stock which may be issued under said Plan as a result
of a stock dividend, stock split or other recapitalization.
(2) Calculated pursuant to Rules 457(c) and (h) under the Securities Act of 1933, as
amended, based upon the weighted average of (i) 629,500 shares underlying options
granted under the Plan having a per share exercise price of $29.33, (ii) 628,493
shares underlying options granted under the Plan having a per share exercise price of
$31.59, (iii) 1,184,344 shares underlying options granted under the Plan having a per
share exercise price of $30.80 and (iv) 57,663 shares underlying options to be granted
under the Plan at an assumed per share exercise price of $40.68, representing the
average of the high and low prices per share of the Common Stock as reported on the
New York Stock Exchange on April 22, 2002.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Commerce Group, Inc. (the "Company") hereby incorporates by
reference in this Registration Statement the following documents and
information heretofore filed with the Securities and Exchange Commission
(the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2001;
(b) The Company's Current Report on Form 8-K dated April 4, 2002;
and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed with the Commission on
April 28, 1988, including any amendments or reports filed for the purpose
of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), prior to the filing of any post-effective
amendment which indicates that all securities offered hereunder have been
sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and
to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that any other
subsequently-filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's By-laws, as amended to date, provide for indemnification
of officers and directors to the fullest extent permitted by the laws of
the Commonwealth of Massachusetts.
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Section 67 of Chapter 156B of the Massachusetts General Laws, which is
applicable to the Company as a Massachusetts corporation, provides as
follows:
"Indemnification of directors, officers, employees and other agents of
a corporation, and persons who serve at its request as directors, officers,
employees or other agents of another organization, or who serve at its
request in any capacity with respect to any employee benefit plan, may be
provided by it to whatever extent shall be specified in or authorized by
(i) the articles of organization or (ii) a by-law adopted by the
stockholders or (iii) a vote adopted by the holders of a majority of the
shares of stock entitled to vote on the election of directors. Except as
the articles of organization or by-laws otherwise require, indemnification
of any persons referred to in the preceding sentence who are not directors
of the corporation may be provided by it to the extent authorized by the
directors. Such indemnification may include payment by the corporation of
expenses incurred in defending a civil or criminal action or proceeding in
advance of the final disposition of such action or proceeding, upon receipt
of an undertaking by the person indemnified to repay such payment if he
shall be adjudicated to be not entitled to indemnification under this
section which undertaking may be accepted without reference to the
financial ability of such person to make repayment. Any such
indemnification may be provided although the person to be indemnified is no
longer an officer, director, employee or agent of the corporation or of
such other organization or no longer serves with respect to any such
employee benefit plan.
No indemnification shall be provided for any person with respect to
any matter as to which he shall have been adjudicated in any proceeding not
to have acted in good faith in the reasonable belief that his action was in
the best interest of the corporation or to the extent that such matter
relates to service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit
plan.
The absence of any express provision for indemnification shall not
limit any right of indemnification existing independently of this section.
A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or other
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or other agent of another
organization or with respect to any employee benefit plan, against any
liability incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to
indemnify him against such liability."
The Company provides officers' and directors' liability insurance for
its officers and directors and has entered into indemnification agreements
with each of its executive officers providing contractual indemnification
by the Company to the fullest extent permissible under the laws of the
Commonwealth of Massachusetts.
Item 7. Exemption from Registration.
Not applicable.
Item 8. Exhibits.
See the exhibit index immediately preceding the exhibits attached
hereto.
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Item 9. Undertakings.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(d) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the Massachusetts
Business Corporation Law and the registrant's Articles of Incorporation and
By-laws, or otherwise, the registrant has been advised that, in the opinion
of the Securities and Exchange Commission, such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy, as expressed in the Act, and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Webster,
Massachusetts, on the 26th day of April 2002.
THE COMMERCE GROUP, INC.
By:
Gerald Fels
Gerald Fels
Executive Vice President and
Chief Financial Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below on this Registration Statement hereby constitutes and
appoints Arthur J. Remillard, Jr. and Gerald Fels, and each of them, with
full power to act without the other, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities (until revoked in
writing) to sign any and all amendments (including post-effective
amendments and amendments thereto) to this Registration Statement on Form
S-8 of the registrant, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and
thing requisite and necessary fully to all intents and purposes as he might
or could do in person thereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons on behalf of the Registrant in the capacities and on the dates
indicated.
Signatures Title Date
Arthur J. Remillard, Jr. Chairman of the Board of Directors, April 26, 2002
Arthur J. Remillard, Jr. President and Chief Executive Officer
Gerald Fels Executive Vice President, Chief April 26, 2002
Gerald Fels Financial Officer and Director
Arthur J. Remillard, III Senior Vice President-Policyholder April 26, 2002
Arthur J. Remillard, III Benefits, Assistant Clerk and Director
Regan P. Remillard Senior Vice President and Director April 26, 2002
Regan P. Remillard
John W. Spillane Clerk and Director April 26, 2002
John W. Spillane
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Signatures Title Date
Herman F. Becker Director April 26, 2002
Herman F. Becker
Joseph A. Borski, Jr. Director April 26, 2002
Joseph A. Borski, Jr.
Eric G. Butler Director April 26, 2002
Eric G. Butler
Henry J. Camosse Director April 26, 2002
Henry J. Camosse
David R. Grenon Director April 26, 2002
David R. Grenon
Robert W. Harris Director April 26, 2002
Robert W. Harris
Robert S. Howland Director April 26, 2002
Robert S. Howland
John J. Kunkel Director April 26, 2002
John J. Kunkel
Raymond J. Lauring Director April 26, 2002
Raymond J. Lauring
Director April 26, 2002
Normand R. Marois
Director April 26, 2002
Suryakant M. Patel
Gurbachan Singh Director April 26, 2002
Gurbachan Singh
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EXHIBIT INDEX
Exhibit No. Title
Exhibit 4 The Commerce Group, Inc. 1994 Management Incentive Plan
Exhibit 5 Opinion of Nutter, McClennen & Fish, LLP
Exhibit 23.1 Consent of Nutter, McClennen & Fish, LLP
contained in Exhibit 5)
Exhibit 23.2 Consent of Ernst & Young LLP
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Exhibit 4
The Commerce Group, Inc.
1994 Management Incentive Plan
(As Amended and Restated Through May 30, 1997)
Section 1. Purpose
The purpose of the 1994 Management Incentive Plan (the "Plan")
of The Commerce Group, Inc. (the "Company") is to enable the Company
and its subsidiaries to attract, retain and motivate their employees
and other persons providing services to them and to enable such
persons to participate in the long-term growth of the Company by
increasing the motivation of such persons to strive toward enhancing
the Company's growth and success.
Section 2. Definitions
As used in the Plan:
"Act" means the Securities Exchange Act of 1934, as amended.
"Award" means any Option, Stock Appreciation Right, Book Value
Award, Performance Stock Unit, Restricted Stock or Stock Unit
awarded under the Plan.
"Board" means the Board of Directors of the Company.
"Book Value" means the book value of the Company determined in
accordance with generally accepted accounting principles
consistently applied, provided that the Committee in its sole
discretion may include in Book Value for purposes of the Plan the
amount of any dividends paid on the Common Stock during the
Performance Cycle. In the event of any dispute as to Book Value,
the matter shall be referred to the Company's independent public
accountants whose determination shall be final and binding.
"Book Value Award" means an Award to a Participant under
Section 9 hereof.
"Cash Award" means an Award (or the portion thereof) that is by
its terms payable in cash.
"Closing Price" means the closing price of a share of Common
Stock on the New York Stock Exchange or, if not listed on such
exchange, on any other national exchange on which the Common Stock
is listed or on NASDAQ.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" means the Compensation Committee of the Board (or a
subcommittee thereof), which shall consist of two or more directors,
each of whom shall be a "non-employee director" within the meaning
of Rule 16b-3 and an "outside director" within the meaning of
Section 162(m) of the Code including any regulations (final,
temporary or, in lieu thereof, proposed) promulgated thereunder, or
any successor provision.
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"Company" means The Commerce Group, Inc., and any present or
future subsidiary corporation (as defined in Section 424 of the
Code) or any successor to such corporations.
"Common Stock" or "Stock" means the common stock of the
Company.
"Fair Market Value" means, with respect to Common Stock or any
other property, the fair market value as determined by the Committee
in good faith or in the manner established by the Committee from
time to time.
"Incentive Stock Option" means an option to purchase shares of
Common Stock awarded to a Participant under the Plan which is
intended to meet the requirements of Section 422 of the Code or any
successor provision.
"Non-Qualified Stock Option" means an option to purchase shares
of Common Stock awarded to a Participant under the Plan which is not
intended to be an Incentive Stock Option.
"Option" means an Incentive Stock Option or a Non-Qualified
Stock Option.
"Participant" means a person selected by the Committee to
receive an Award under the Plan.
"Performance Cycle" or "Cycle" means the period of time
selected by the Committee during which performance or Book Value is
measured for the purpose of determining the extent to which an Award
has been earned, the value of such Award or both.
"Performance Stock Unit" means shares of Common Stock awarded
to a Participant under Section 10 hereof.
"Restricted Period" means the period of time selected by the
Committee during which an award of Restricted Stock may be forfeited
to the Company.
"Restricted Stock" means shares of Common Stock awarded to a
Participant under Section 11 hereof which are subject to forfeiture.
"Rule 16b-3" means Rule 16b-3 promulgated under Section 16(b)
of the Act, as such rule may be amended from time to time, or any
successor provision.
"Stock Award" means any Award (or the portion thereof) that is
by its terms payable in shares of Common Stock.
"Stock Appreciation Right" or "SAR" means a right awarded to a
Participant under Section 8 hereof.
"Stock Unit" or "Unit" means a share of Common Stock or a unit
that is valued in whole or in part by reference to, or otherwise
based on, the Book Value, Fair Market Value or other value of a
share of Common Stock awarded to a Participant under the Plan.
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Section 3. Administration
(a) The Plan shall be administered by the Committee. Among
other things, the Committee shall have the authority, subject to a
similar right in the Board and to the terms of the Plan, to grant
Awards, to determine the individuals to whom and the time or times
at which Awards may be granted and to determine the terms and
conditions of any Award granted hereunder.
(b) Subject to the terms of this Plan, the Committee shall
have authority to adopt, alter and repeal such administrative rules,
guidelines and practices governing the operation of the Plan as it
shall from time to time consider advisable, to interpret the
provisions of the Plan and any Award, and to decide all disputes
arising in connection with the Plan. The Committee's decisions and
interpretations shall be final and binding. Any action of the
Committee with respect to the administration of the Plan shall be
taken pursuant to a majority vote or by the unanimous written
consent of its members.
Section 4. Eligibility
All directors, officers and other senior management employees
of the Company shall be eligible to participate in the Plan.
Section 5. Stock Available for Issuance Under the Plan
Up to 2,500,000 shares of Common Stock may be issued in the
aggregate pursuant to this Plan whether pursuant to Stock Awards or
otherwise. Shares of Common Stock issued under the Plan may consist
in whole or in part of authorized but unissued shares or treasury
shares. Except as otherwise provided in this section, if any Stock
Award expires or is terminated before exercise or is forfeited for
any reason, without a payment in the form of Common Stock being made
to the Participant, the shares of Common Stock subject to such Stock
Award, to the extent of such expiration, termination or forfeiture,
shall again be available for award under the Plan. If the Company
is recapitalized through the subdivision or combination of the then
outstanding shares of Common Stock into a larger or smaller number,
whether pursuant to a stock split, stock dividend or otherwise,
there shall be a proportionate increase or decrease in the number of
shares of Common Stock that may be issued pursuant to this Plan.
Nothing contained in this Section shall be deemed to limit the
number of Units for which Cash Awards may be granted during the term
of this Plan.
Section 6. Annual Limit Per Participant
No Participant may receive during any calendar year Awards
which in the aggregate cover more than 500,000 Units.
Section 7. Options
(a) Subject to the provisions of the Plan, the Committee may
award Incentive Stock Options and Non-Qualified Stock Options and
determine the number of shares to be covered by each Option, the
option price therefor, the term of the Option, and the other
conditions and limitations applicable to the exercise of the Option.
The terms and conditions of Incentive Stock Options shall be subject
to and comply with Section 422 of the Code, or any
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successor provision, and any regulations thereunder. Anything in
the Plan to the contrary notwithstanding, no term of the Plan
relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted to the
Committee under the Plan be so exercised, so as to disqualify the
Plan or, without the consent of the optionee, any Incentive Stock
Option granted under the Plan, under Section 422 of the Code.
(b) The option price per share of Common Stock purchasable
under an Option shall not be less than 100% of the Fair Market Value
of the Common Stock on the date of award but in no event less than
the par value of the Common Stock. If the Participant owns or is
deemed to own (by reason of the attribution rules applicable under
Section 424(d) of the Code) more than 10% of the combined voting
power of all classes of stock of the Company or any subsidiary or
parent corporation of the Company and an Incentive Stock Option is
granted to such Participant, the option price shall be not less than
110% of Fair Market Value of the Common Stock on the date of award.
(c) No Option shall be exercisable more than ten years after
the date the Option is awarded. If a Participant owns or is deemed
to own (by reason of the attribution rules of Section 424(d) of the
Code) more than 10% of the total combined voting power of all
classes of stock of the Company or any subsidiary or parent
corporation of the Company and an Incentive Stock Option is awarded
to such Participant, such Option shall not be exercisable after the
expiration of five years from the date of award.
(d) No shares shall be delivered pursuant to any exercise of
an Option until payment in full of the option price therefore is
received by the Company. Such payment may be made in whole or in
part in cash or by certified or bank check or, to the extent
permitted by the Committee at or after the award of the Option, by
delivery of a note or shares of Common Stock owned by the
Participant, valued at their Fair Market Value on the date of
delivery, or such other lawful consideration as the Committee may
determine.
(e) Except as otherwise provided by the Committee in the
Award, no Option shall be transferable by the Participant otherwise
than by will or by the laws of descent and distribution, and all
Options shall be exercisable during the Participant's lifetime only
by the Participant. A Participant shall notify the Committee in the
event that he or she disposes of Common Stock acquired upon exercise
of an Incentive Stock Option within the two-year period following
the date the Incentive Stock Option was granted or within the one-
year period following the date he or she received Common Stock upon
the exercise of an Incentive Stock Option.
(f) The Committee may at any time accelerate the
exercisability of all or any portion of any Option.
Section 8. Stock Appreciation Rights
(a) A Stock Appreciation Right (or "SAR") is an Award
entitling the Participant to receive an amount in cash or shares of
Common Stock or a combination thereof having a value equal to (or if
the Committee shall so determine at time of grant, less than) the
excess of the Fair Market Value of a share of Common Stock on the
date of exercise over the Fair Market
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Value of a share of Common Stock on the date of grant (or over the
option exercise price, if the Stock Appreciation Right was granted
in tandem with an Option) multiplied by the number of shares with
respect to which the Stock Appreciation Right shall have been
exercised.
(b) Subject to the provisions of the Plan, the Committee may
award SARs in tandem with an Option (at or after the award of the
Option), or alone and unrelated to an Option, and determine in its
sole discretion the terms and conditions applicable thereto,
including the form of payment. SARs granted in tandem with an
Option shall terminate to the extent that the related Option is
exercised, and the related Option shall terminate to the extent that
the tandem SARs are exercised. Subject to this paragraph (b) and to
such rules as the Committee may, in its discretion and for any
reason whatsoever, impose, an SAR granted in connection with an
Option will be exercisable at such time or times, and only to the
extent, that a related Option is exercisable, and shall not be
transferable except to the extent that such related Option may be
transferable.
(c) The Committee may impose such additional conditions or
limitations on the exercise of an SAR as it may deem necessary or
desirable to secure for Participants the benefits of Rule 16b-3.
(d) An SAR related to an Option which can be exercised only
during limited periods following a change in control of the Company
may entitle the Participant to receive an amount based upon the
highest price paid or offered for Common Stock in any transaction
relating to the change in control or paid during the thirty-day
period immediately preceding the occurrence of the change in control
in any transaction reported in the stock market in which the Common
Stock is normally traded.
(e) Notwithstanding that an Option at the time of exercise
shall not be accompanied by a related Stock Appreciation Right, if
the market price of the shares subject to such Option exceeds the
exercise price of such Option at the time of its exercise, the
Committee may, in its discretion, cancel such Option, in which event
the Company shall pay to the person exercising such Option an amount
equal to the difference between the Fair Market Value of the Common
Stock to have been purchased pursuant to such exercise of such
Option (determined on the date the Option is cancelled) and the
aggregate consideration to have been paid by such person upon such
exercise. Such payment shall be by check, bank draft or in Common
Stock having a Fair Market Value (determined on the date the payment
is to be made) equal to the amount of such payments or any
combination thereof, as determined by the Committee. The Committee
may exercise its discretion under the first sentence of this
paragraph (e) only in the event of a written request of the person
exercising the option, which request shall not be binding on the
Committee.
Section 9. Book Value Awards
(a) A Book Value Award is an Award entitling the Participant
to receive an amount in cash or shares of Common Stock or a
combination thereof having a value equal to (or if the Committee
shall so determine at time of grant, less than) the excess of the
Book Value of a share of Common Stock on a date selected by the
Committee over the Book Value of a share of Common Stock on a
previous date selected by the Committee multiplied by the number of
Book Value Award Units granted.
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(b) There may be more than one Performance Cycle in existence
at any one time for Book Value Awards, and the duration of
Performance Cycles may differ from each other.
(c) During any Performance Cycle, the Committee may adjust the
performance goals for such Performance Cycle as it deems equitable
in recognition of unusual or non-recurring events affecting the
Company, changes in applicable tax laws or accounting principles, or
such other factors as the Committee may determine, provided,
however, that the Committee may specify at the time an Award is made
that the performance goals applicable thereto may not be reduced
during the term of the Award.
(d) As soon as practicable after the end of a Performance
Cycle, the Committee shall determine the value of the compensation
to which the Participant is entitled on the basis of the terms of
the Book Value Award. The payment values of Book Value Awards shall
be distributed to the Participant as soon as practicable thereafter.
The Committee shall determine, at or after the time of grant of Book
Value Awards, whether payment values will be settled in whole or in
part in cash or other property, including Common Stock or Awards.
Section 10. Performance Stock Units
(a) A Performance Stock Unit is an Award entitling the
Participant to acquire shares of Common Stock upon the attainment of
specified performance goals. Subject to the provisions of the Plan,
the Committee may award Performance Stock Units and determine the
performance goals applicable to each such Award, the number of such
shares for each Performance Cycle, the duration of each Performance
Cycle and all other limitations and conditions applicable to the
awarded Performance Stock Units.
(b) There may be more than one Performance Cycle in existence
at any one time, and the duration of Performance Cycles may differ
from each other. The payment value of each Performance Stock Unit
shall be equal to (or if the Committee shall so determine at time of
grant, less than) the Fair Market Value of one share of Common Stock
on the date the Performance Stock Unit is earned or, in the
discretion of the Committee, on the date the Committee determines
that the Performance Stock Unit has been earned.
(c) During any Performance Cycle, the Committee may adjust the
performance goals for such Performance Cycle as it deems equitable
in recognition of unusual or non-recurring events affecting the
Company, changes in applicable tax laws or accounting principles, or
such other factors as the Committee may determine, provided,
however, that the Committee may specify at the time an Award is made
that the performance goals applicable thereto may not be reduced
during the term of the Award.
(d) As soon as practicable after the end of a Performance
Cycle, the Committee shall determine the number of Performance Stock
Units which have been earned by the Participant on the basis of
performance in relation to the established performance goals. The
payment values of earned Performance Stock Units shall be
distributed to the Participant as soon as practicable thereafter.
The Committee shall determine, at or after the time of award,
whether payment values will be settled in whole or in part in cash
or other property, including Common Stock or Awards.
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Section 11. Restricted Stock
(a) A Restricted Stock Award is an Award entitling the
Participant to acquire shares of Common Stock for a Purchase price
equal to or greater than their par value, subject to such conditions
and restrictions, including, without limitation, a Company right
during a specified period or periods to repurchase such shares at
their original purchase price (or to require forfeiture of such
shares) upon the Participant's termination of employment, as the
Committee shall determine.
(b) Subject to the provisions of the Plan, the Committee may
award shares of Restricted Stock and determine the purchase price
(if any) therefore, the duration of the Restricted Period during
which, and the conditions under which, the shares may be forfeited
to or repurchased by the Company and the other terms and conditions
of such Awards. Shares of Restricted Stock may be issued for no
cash consideration or such minimum consideration as may be required
by applicable law.
(c) Shares of Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered, except as permitted by
the Committee, during the Restricted Period. Shares of Restricted
Stock shall be evidenced in such manner as the Committee may
determine. Any certificates issued in respect of shares of
Restricted Stock shall be registered in the name of the Participant
and, unless otherwise determined by the Committee, deposited by the
Participant, together with a stock power endorsed in blank, with the
Company. At the expiration of the Restricted Period, the Company
shall deliver such certificates to the Participant.
(d) A Participant shall have all the rights of a stockholder
with respect to the Restricted Stock including voting and dividend
rights, subject to restrictions on transferability and Company
repurchase or forfeiture rights described in this Section and
subject to any other conditions determined by the Committee and
contained in the Award.
Section 12. Stock Units
(a) Subject to the provisions of the Plan, the Committee may
award Stock Units subject to such terms, restrictions, conditions,
performance criteria, vesting requirements and payment rules as the
Committee shall determine.
(b) Shares of Common Stock awarded in connection with a Stock
Unit may be issued for no cash consideration or such minimum
consideration as may be required by applicable law.
Section 13. General Provisions Applicable to Awards
(a) Notwithstanding any other provision of the Plan, if
necessary to qualify for the exemption provided by Rule 16b-3 (i)
any Common Stock or other equity security offered under the Plan to
a Participant subject to Section 16 of the Act (a "Section 16
Participant") other than pursuant to an Option may not be sold for
six months after acquisition; any Common Stock or other equity
security acquired by a Section 16 Participant upon exercise of an
Option may not be sold for six months after the date of grant of the
Option; and any SAR granted to a Section 16 Participant may not be
exercised for six months after the date of grant; and (ii) any
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Option, SAR or other similar right related to an equity security
issued under the Plan shall not be transferable other than by will
or the laws of descent and distribution. The Committee shall have
no authority to take any action if the authority to take such
action, or the taking of such action, would disqualify the Plan or
any Award from the exemption provided by Rule 16b-3.
(b) Each Award under the Plan shall be evidenced by a writing
delivered to the Participant specifying the terms and conditions
thereof and containing such other terms and conditions not
inconsistent with the provisions of the Plan as the Committee
considers necessary or advisable to achieve the purposes of the Plan
or comply with applicable tax and regulatory laws and accounting
principles.
(c) Each Award may be made alone, in addition to or in
relation to any other Award. The terms of each Award need not be
identical, and the Committee need not treat Participants uniformly.
Except as otherwise provided by the Plan or a particular Award, any
determination with respect to an Award may be made by the Committee
at the time of award or at any time thereafter.
(d) The Committee shall determine whether Awards to
Participants are settled in whole or in part in cash, Common Stock,
other securities of the Company, Awards or other property. The
Committee may permit a Participant to defer all or any portion of a
payment under the Plan, including the crediting of interest on
deferred amounts denominated in cash and dividend equivalents on
amounts denominated in Common Stock.
(e) In the discretion of the Committee, any Award to a
Participant under the Plan may provide the Participant with (i)
dividends or dividend equivalents payable currently or deferred with
or without interest and (ii) cash payments in lieu of or in addition
to an Award.
(f) The Committee shall determine the effect on an Award of
the disability, death, retirement or other termination of employment
of a Participant and the extent to which, and the period during
which, the Participant's legal representative, guardian or
designated beneficiary may receive payment of an Award or exercise
rights thereunder.
(g) In order to preserve the rights of a Participant under an
Award in the event of a change in control of the Company, the
Committee in its discretion may, at the time an Award is made or at
any time thereafter, take one or more of the following actions with
respect to any such change of control: (i) provide for the
acceleration of any time period relating to the exercise or
realization of the Award, (ii) provide for the purchase of the Award
upon the Participant's request for an amount of cash or other
property that could have been received upon the exercise or
realization of the Award had the Award been currently exercisable or
payable, (iii) adjust the terms of the Award in a manner determined
by the Committee, (iv) cause the Award to be assumed, or new rights
substituted therefor, by another entity, or (v) make such other
provision as the Committee may consider equitable and in the best
interests of the Company.
(h) The Participant shall pay to the Company, or make
provision satisfactory to the Committee for payment of, any taxes
required by law to be withheld in respect of Awards under the Plan
no later than the date of the event creating the tax liability. In
the Committee's discretion, such
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tax obligations may be paid, in whole or in part, in shares of
Common Stock, including shares retained from the Award creating the
tax obligation, valued at their Fair Market Value on the date of
delivery, provided, however, that with respect to any Section 16
Participant, any such retention of Shares shall be made in
compliance with any applicable requirements of Rule 16b-3. The
Company may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind otherwise due to the
Participant.
(i) For purposes of the Plan, the following events shall not
be deemed a termination of employment of a Participant:
(i) a transfer to the employment of the Company from a
subsidiary or from the Company to a subsidiary, or from one
subsidiary to another, or
(ii) an approved leave of absence for military service or
sickness, or for any other purpose approved by the Company, if the
Participant's right to reemployment is guaranteed either by a
statute or by contract or under the policy pursuant to which the
leave of absence was granted or if the Committee otherwise so
provides in writing.
For purposes of the Plan, employees of a subsidiary of the Company
shall be deemed to have terminated their employment on the date on
which such subsidiary ceases to be a subsidiary of the Company.
(j) The Committee may amend, modify or terminate any
outstanding Award held by a Participant, including substituting
therefor another Award of the same or a different type, changing the
date of exercise or realization, converting an Incentive Stock
Option to a Non-Qualified Stock Option, and modifying or waiving the
restrictions with respect to any Restricted Stock, provided,
however, that the Participant's consent to such action shall be
required unless the Committee determines that the action, taking
into account any related action, would not materially and adversely
affect the Participant.
(k) In the event that the Committee determines in its sole
discretion that any stock dividend, extraordinary cash dividend,
creation of a class of equity securities, recapitalization,
reclassification, reorganization, merger, consolidation, split-up,
spin-off, combination, exchange of shares, warrants or rights
offering to purchase Common Stock at a price substantially below
fair market value, or other similar transaction affects the Common
Stock such that an adjustment is required in order to preserve the
benefits or potential benefits intended to be made available under
the Plan to Participants, the Committee shall have the right to
adjust equitably any or all of (i) the number and kind of shares of
stock or securities in respect of which Awards may be made under the
Plan to Participants, (ii) the number and kind of shares subject to
outstanding Awards held by Participants, and (iii) the award,
exercise or conversion price with respect to any of the foregoing
held by Participants, and if considered appropriate, the Committee
may make provision for a cash payment with respect to an outstanding
Award held by a Participant, provided that the number of shares
subject to any Stock Award shall always be a whole number.
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Section 14. Miscellaneous
(a) No person shall have any claim or right to be granted an
Award, and the grant of an Award shall not be construed as giving a
Participant the right to continued employment. The Company
expressly reserves the right at any time to dismiss a Participant
free from any liability or claim under the Plan, except as expressly
provided in the applicable Award.
(b) Nothing contained in the Plan shall prevent the Company
from adopting other or additional compensation arrangements for its
employees.
(c) Subject to the provisions of the applicable Award, no
Participant shall have any rights as a stockholder with respect to
any shares of Common Stock to be distributed under the Plan until he
or she becomes the holder thereof. A Participant to whom shares of
Common Stock are awarded shall be considered the holder of the
Shares at the time of the Award except as otherwise provided in the
applicable Award.
(d) Subject to the approval of the stockholders of the
Company, the Plan shall be effective on March 18, 1994. Prior to
such approval, Awards may be made under the Plan expressly subject
to such approval.
(e) The Board may amend, suspend or terminate the Plan or any
portion thereof at any time, provided, however, that no amendment
shall be made without stockholder approval if such approval is
necessary to comply with any applicable tax or regulatory
requirement, including any requirements for exemptive relief under
Section 16(b) of the Act, or any successor provision.
(f) Awards may not be made under the Plan after ten years
from its effective date, but then outstanding Awards may extend
beyond such date.
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Exhibit 5
April 25, 2002
The Commerce Group, Inc.
211 Main Street
Webster, MA 01570
Gentlemen/Ladies:
We are furnishing this opinion to you pursuant to Item 8 of
Form S-8 in support of the registration statement on Form S-8 (the
"Registration Statement") which The Commerce Group, Inc. (the
"Company") is filing concurrently herewith with the Securities and
Exchange Commission under the Securities Act of 1933, as amended,
(the "Securities Act"), with respect to 2,500,000 shares, of the
Company's common stock, $0.50 par value per share (the "Common
Stock"), issuable pursuant to the Company's 1994 Management
Incentive Plan, as amended to through date (the "Plan") and an
indeterminate number of shares of such Common Stock which may be
issued or become issuable under the Plan by reason of stock
dividends, stock splits or other recapitalizations executed
hereafter.
We have acted as counsel to the Company in connection with the
Registration Statement. We have examined such documents and made
such other investigation as we have deemed appropriate to render the
opinion set forth below. As to matters of fact material to our
opinion, we have relied, without independent verification, on the
Registration Statement and other inquiries of officers of the
Company.
The opinion expressed below is limited to Massachusetts law and
the federal law of the United States. Based upon the foregoing, we
are of the opinion that:
1. When issued and paid for in compliance with the terms of
the Plan, the Articles of Organization and the By-laws of the
Company and the Massachusetts Business Corporation Law, the
2,500,000 shares of Common Stock referred to above will be duly and
validly issued, fully paid and non-assessable; and
2. The additional shares of Common Stock which may become
issuable under the Plan by reason of stock dividends, stock splits
or other recapitalizations hereafter executed, if and when issued in
accordance with the terms of the Plan and upon compliance with the
applicable provisions of law and of the Company's Articles of
Organization and By-laws in effect at that time, will be duly and
validly issued, fully paid and non-assessable.
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The Commerce Group, Inc.
April 25, 2002
Page 2
This opinion letter shall be interpreted in accordance with the
Legal Opinion Principles issued by the Committee on Legal Opinions
of the American Bar Association's Business Law Section as published
in 53 Business Lawyer 831 (May 1998).
We understand that this opinion letter is to be used in
connection with the Registration Statement and hereby consent to the
filing of this opinion letter with and as a part of the Registration
Statement and of any amendments thereto. It is understood that this
opinion letter is to be used in connection with the offer and sale
of the aforesaid shares only while the Registration Statement, as it
may be amended from time to time as contemplated by Section 10(a)(3)
of the Securities Act, is effective under the Securities Act.
Very truly yours,
Nutter, McClennen & Fish, LLP
MKK/SMA/JCC2
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Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in this
Registration Statement (Form S-8) of our report dated January 29,
2002, with respect to the consolidated financial statements of The
Commerce Group, Inc. and Subsidiaries incorporated by reference in
its Annual Report (Form 10-K) for the year ended December 31, 2001
and the related financial statement schedules included therein,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
April 26, 2002
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