Solicitation of any offeree for acceptance or rejection of a take-over offer, acquisition of any equity security of a target company subject to s. 552.05
, or acquisition, removal or exercise of control, directly or indirectly, of any target company assets in this state, in connection with a take-over offer subject to s. 552.05
, before the take-over offer is permitted to be made under this chapter.
Publication or use in connection with the offer of any false statement of a material fact or omitting to state a material fact necessary to make the statements made by him or her not misleading, but not including the mailing by a target company to its stockholders of solicitation materials published by an offeror.
Sale to the offeror by any controlling person of a target company of any equity securities of the target company for consideration higher than that to be paid other offerees under the take-over offer.
Refusal by a target company to permit an offeror who is a stockholder of record to examine its list of stockholders, and to make extracts therefrom, pursuant to the applicable corporation statute, for the purpose of making a take-over offer in compliance with this chapter, or in lieu thereof, to mail any solicitation materials published by the offeror to its security holders with reasonable promptness after receipt from the offeror of such materials and the reasonable expenses of postage and mailing.
Acquisition by or through a broker-dealer acting on behalf of an offeror or a target company of any equity security of the target company in connection with a take-over offer unless the broker-dealer files with the division such information as the division requires and to the extent permitted by rule or order by the division, or unless the broker-dealer did not know and in the exercise of reasonable care could not have known that the person for whom it acted was an offeror or a target company or that the acquisition was in connection with a take-over offer.
See also ss. DFI-Sec 21.01
, Wis. adm. code.
Limitations on offerors. 552.11(1)
No offeror may make a take-over offer involving a target company which is not made to security holders in this state on substantially the same terms as the offer is made to security holders outside this state.
An offeror shall provide that any equity securities of a target company subject to s. 552.05
deposited or tendered pursuant to a registered take-over offer may be withdrawn by or on behalf of any offeree at any time within 7 days from the date the offer has become effective under this chapter and after 60 days from the date the offer has become effective under this chapter, except as the division may otherwise prescribe by rule or order for the protection of investors. In any offer permitted to commence by an exemption order under s. 552.05 (1)
, the offeror shall provide that any equity securities tendered or deposited pursuant to the conditional offer will be purchased by the offeror only in the event a subsequent registration of the offer occurs under this chapter.
If an offeror makes a take-over offer for less than all the outstanding equity securities of any class of securities of a target company subject to s. 552.05
, and if the number of securities deposited or tendered pursuant thereto within 20 days after the offer has become effective under this chapter and copies of the offer, or notice of any increase in the consideration offered, are first published or sent or given to security holders is greater than the number the offeror has offered to accept and pay for, the securities shall be accepted proportionally, disregarding fractions, according to the number of securities deposited or tendered by each offeree.
If an offeror varies the terms of a take-over offer for a target company subject to s. 552.05
before its expiration date by increasing the consideration offered to security holders, the offeror shall pay the increased consideration for all equity securities accepted, whether such securities have been accepted by the offeror before or after the variation in the terms of the offer.
No offeror may make a take-over offer involving a target company subject to s. 552.05
, or acquire any equity securities of the target company pursuant to the offer, at any time when an administrative or injunctive proceeding has been brought by the division against the offeror for violation of this chapter that has not been finally determined.
No offeror may acquire, remove or exercise control, directly or indirectly, over any assets located in this state of a target company subject to s. 552.05
unless the take-over offer is effective or exempt under this chapter, except as permitted by order of the division.
Administration, rules and orders. 552.13(1)
This chapter shall be administered by the division, which may exercise all powers granted to the division under ch. 551
which are not inconsistent with this chapter.
The division may adopt rules necessary to carry out the purposes of this chapter, including rules defining fraudulent or deceptive practices and other terms used in this chapter.
The division may by rule or order exempt from any provisions of this chapter take-over offers that the division determines are not made for the purpose or do not have the effect of changing or influencing the control of a target company or where compliance with this chapter is not necessary for the protection of offerees in this state, and may exempt any person from the filing of statements under this chapter.
The division may by order direct any person to file any statement provided for in this chapter if it appears that such person is required to file such statement and is delinquent in the filing of such statement.
History: 1971 c. 300
; 1981 c. 16
; 1995 a. 27
See also ss. DFI-Sec 24.01
, Wis. adm. code.
Fees and expenses. 552.15(1)
The division shall charge a filing fee of $100 for a registration statement filed by an offeror and $100 for a request for hearing filed by a target company.
The expenses reasonably attributable to any hearing held under this chapter shall be charged ratably to the offeror and the target company.
The expenses reasonably attributable to the examination of solicitation materials shall be charged to the person filing them, but the expenses so charged shall not exceed such maximum amounts as the division by rule prescribes.
See also s. DFI-Sec 27.01
, Wis. adm. code.
Whenever it appears that any person, including a controlling person of an offeror or target company, has engaged or is about to engage in any act or practice constituting a violation of this chapter or any rule or order under this chapter, the division may bring an action in the name of the state in the circuit court of the appropriate county to enjoin the acts or practices and to enforce compliance with this chapter or any rule or order under this chapter, or may refer the matter to the attorney general or the district attorney of the appropriate county. Upon a proper showing, the court may grant a permanent or temporary injunction or restraining order, may order rescission of any sales or purchases of securities determined to be unlawful under this chapter or any rule or order under this chapter or may grant other appropriate relief. The court may not require the division to post a bond.
Criminal penalties. 552.19(1)
Any person, including a controlling person of an offeror or target company, who willfully violates this chapter or any rule under this chapter, or any order of which the person has notice, is guilty of a Class H felony. Each of the acts specified constitutes a separate offense and a prosecution or conviction for any one of the offenses does not bar prosecution or conviction for any other offense.
The division may refer such evidence as is available concerning violations of this chapter or of any rule or order under this chapter to the attorney general or the district attorney of the appropriate county who may, with or without any reference, institute the appropriate criminal proceedings under this chapter. If referred to a district attorney, the district attorney shall, within 90 days, file with the division a statement concerning any action taken or, if no action has been taken, the reasons therefor.
Nothing in this chapter limits the power of the state to punish any person for any conduct which constitutes a crime under any other statute.
Civil liabilities. 552.21(1)
Any offeror who purchases a security in connection with a take-over offer not in compliance with this chapter or by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, is liable to the person selling the security to the offeror, who may sue either at law or in equity to recover the security, plus any income received by the purchaser on the security, upon tender of the consideration received, or for damages. Damages are the excess of either the value of the security on the date of purchase or its present value, whichever is greater, over the present value of the consideration received for the security. Tender requires only notice of willingness to pay the amount specified in exchange for the security. Any notice may be given by service as in civil actions or by certified mail to the last-known address of the person liable.
Every person who directly or indirectly controls a person liable under sub. (1)
, every partner, principal executive officer or director of such person, every person occupying a similar status or performing similar functions, every employee of such person who materially aids in the act or transaction constituting the violation, and every broker-dealer or agent who materially aids in the act or transaction constituting the violation, is also liable jointly or severally with and to the same extent as such person, unless the person liable under this subsection proves that he or she did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. There is contribution as in cases of contract among the several persons so liable.
No action may be maintained under this section unless commenced before the expiration of 3 years after the act or transaction constituting the violation, but the time specified for commencing such action shall be extended by reason of any fact and for the time specified in ss. 893.13
The rights and remedies under this chapter are in addition to any other rights or remedies that may exist at law or in equity.
Application of chapter. 552.23(1)
If the target company is an insurance company subject to regulation by the commissioner of insurance, a banking corporation, savings bank, or savings and loan association subject to regulation by the division of banking, or a company subject to regulation by the public service commission, the department of transportation, or the office of the commissioner of railroads, the division of securities shall promptly furnish a copy of the registration statement filed under this chapter to the regulatory agency having supervision of the target company. Any hearing under this chapter involving any such target company shall be held jointly with the regulatory agency having supervision, and any determination following the hearing shall be made jointly with that regulatory agency.
If the target company is a public utility, public utility holding company, national banking association, bank holding company; a bank, trust company, savings bank or savings and loan association organized under the laws of any state and subject to regulation with respect to the issuance or guarantee of its securities by a governmental unit of that state; or a federal savings and loan association; and the take-over of any such company or association is subject to approval by order of a federal agency, this chapter shall not apply.
This chapter shall not apply to any offer involving a class vote by stockholders of the target company, pursuant to its articles of incorporation or the applicable corporation statute, on a merger, consolidation or sale of corporate assets in consideration of the issuance of securities of another corporation, or sale of its securities in exchange for cash or securities of another corporation.
See also s. DFI-Sec 28.01
, Wis. adm. code.
Application of securities law.
All of the provisions of ch. 551
which are not in conflict with this chapter shall apply to any take-over offer involving a target company in this state.
History: 1971 c. 300