SB423: Bill Text

SB423,44,24 4. Defining, limiting and regulating the powers of the corporation, its board of directors and its members.

SB423,45,2 (c) Any provision that, under this chapter, is required or permitted to be set forth in the bylaws.

SB423,45,4 (3) Powers enumerated in chapter. The articles of incorporation need not include any of the corporate powers enumerated in this chapter.

SB423,45,6 (4) Articles supersede bylaws. If a provision of the articles of incorporation is inconsistent with a bylaw, the provision of the articles of incorporation controls.

SB423,45,8 181.0203 Incorporation. (1) When corporate existence begins. The corporate existence begins when the articles of incorporation become effective.

SB423,45,12 (2) Conclusive proof of incorporation. The department's filing of the articles of incorporation or articles of domestication is conclusive proof that the corporation is incorporated under this chapter, except in a proceeding by the state to cancel or revoke the incorporation or involuntarily dissolve the corporation.

SB423,45,16 (3) Notification of reporting requirements. Upon filing articles of incorporation of a corporation, the department shall inform the corporation of the reporting requirements under s. 440.42 for charitable organizations that solicit contributions.

SB423,45,22 181.0205 Organization of corporation. (1) Organizational meeting required. (a) After incorporation, if initial directors are named in the articles of incorporation, the initial directors shall hold an organizational meeting, at the call of a majority of the directors, to complete the organization of the corporation by appointing officers, adopting bylaws and carrying on any other business brought before the meeting.

SB423,45,25 (b) After incorporation, if initial directors are not named in the articles of incorporation, the incorporator or incorporators shall hold an organizational meeting, at the call of a majority of the incorporators, to do any of the following:

SB423,46,1 1. Elect directors and complete the organization of the corporation.

SB423,46,2 2. Elect a board that will complete the organization of the corporation.

SB423,46,6 (2) Written consents. Action required or permitted by this chapter to be taken by incorporators at an organizational meeting may be taken without a meeting if the action taken is evidenced by one or more written consents describing the action taken and signed by each incorporator.

SB423,46,8 (3) Location of organizational meeting. An organizational meeting may be held in or outside of this state.

SB423,46,10 181.0206 Bylaws. (1) Initial bylaws. The incorporators, members or board of a corporation shall adopt the initial bylaws for the corporation.

SB423,46,16 (2) Subsequent adoption, amendment and repeal. After the adoption of the initial bylaws under sub. (1), bylaws may be adopted either by the members or the board, but no bylaw adopted by the members shall be amended or repealed by the directors, unless the bylaws adopted by the members shall have conferred such authority upon the directors. Any bylaw adopted by the board is subject to amendment or repeal by the members as well as by the directors.

SB423,46,19 (3) Content of bylaws. The bylaws of a corporation may contain any provision for regulating and managing the affairs of the corporation that is not inconsistent with its articles of incorporation or with the laws of this state.

SB423,46,22 181.0207 Emergency bylaws. (1) Definition. In this section, "emergency" means a catastrophic event that prevents a quorum of the corporation's directors or members from being readily assembled.

SB423,47,3 (2) Adoption of emergency bylaws. Unless the articles of incorporation provide otherwise, the board of a corporation may adopt bylaws that are effective only in an emergency. Emergency bylaws are subject to amendment or repeal by the board or by the members, if any. Emergency bylaws may provide special procedures necessary for managing the corporation during the emergency, including any of the following:

SB423,47,4 (a) Procedures for calling a meeting of the board.

SB423,47,5 (b) Quorum requirements for the meeting.

SB423,47,6 (c) Designation of additional or substitute directors.

SB423,47,9 (3) Effectiveness. Provisions of the regular bylaws that are consistent with the emergency bylaws remain effective during the emergency. The emergency bylaws are not effective after the emergency ends.

SB423,47,13 (4) Action taken under emergency bylaws. Notwithstanding ss. 181.0831 and 181.0833, corporate action taken in good faith in accordance with the emergency bylaws binds the corporation and may not be used to impose liability on a corporate director, officer, member, employe or agent.

SB423,47,15 Subchapter III Purposes and powers

SB423,47,18 181.0301 Purposes. (1) Permitted purposes. A corporation incorporated under this chapter has the purpose of engaging in any lawful activity unless a more limited purpose is set forth in the articles of incorporation.

SB423,47,22 (2) Effect of other regulation. A corporation engaging in an activity that is subject to regulation under another statute of this state may incorporate under this chapter only if incorporation under this chapter is not prohibited by the other statute. The corporation shall be subject to all limitations of the other statute.

SB423,48,2 181.0302 General powers. Unless its articles of incorporation provide otherwise, a corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its affairs, including the power to do all of the following:

SB423,48,3 (1) Legal actions. Sue and be sued, complain and defend in its corporate name.

SB423,48,6 (2) Corporate seal. Have a corporate seal, which may be altered at will, and to use it, or a facsimile of it, by impressing or affixing it or in any other manner reproducing it.

SB423,48,9 (3) Bylaws. Make and amend bylaws not inconsistent with its articles of incorporation or with the laws of this state, for regulating and managing the affairs of the corporation.

SB423,48,12 (4) Property acquisition. Purchase, receive, lease or otherwise acquire, and own, hold, improve, use and otherwise deal with, property or any legal or equitable interest in property, wherever located.

SB423,48,14 (5) Disposition of property. Sell, convey, mortgage, pledge, lease, exchange and otherwise dispose of all or any part of its property.

SB423,48,18 (6) Interests in other entities. Purchase, receive, subscribe for or otherwise acquire, and own, hold, vote, use, sell, mortgage, lend, pledge or otherwise dispose of, and deal in and with, shares or other interests in, or obligations of, any other entity.

SB423,48,21 (7) Contracts and liabilities. Make contracts and guarantees; incur liabilities; borrow money; issue notes, bonds and other obligations; and secure any of its obligations by mortgage or pledge of any of its property, franchises or income.

SB423,48,23 (8) Loans. Lend money, invest and reinvest its funds and receive and hold property as security for repayment, except as limited by s. 181.0832.

SB423,48,25 (9) Participation in other entities. Be a promoter, partner, member, associate or manager of any entity.

SB423,49,2 (10) Exercise of powers. Conduct its activities, locate offices and exercise the powers granted by this chapter in or outside this state.

SB423,49,5 (11) Directors, officers, employes and agents. Elect or appoint directors, officers, employes and agents of the corporation, define their duties and fix their compensation.

SB423,49,9 (12) Pension and incentive plans. Pay pensions and establish pension plans, pension trusts and other benefit and incentive plans for any of its current or former directors, officers, employes and agents of the corporation, its subsidiaries or its affiliates.

SB423,49,13 (13) Benefit plans. Provide benefits or payments to directors, officers and employes of the corporation, its subsidiaries or its affiliates, and to their estates, families, dependents or beneficiaries, in recognition of the past services of the directors, officers and employes to the corporation, its subsidiaries or its affiliates.

SB423,49,19 (14) Compensation. Establish reasonable compensation for all directors for services to the corporation as directors, officers or otherwise. Unless otherwise provided in the articles of incorporation or bylaws, the board of directors, by the affirmative vote of a majority of the directors then in office and irrespective of any personal interest of any of its members, may establish reasonable compensation for all directors for such services or delegate this authority to an appropriate committee.

SB423,49,22 (15) Donations. Make donations and otherwise devote its resources for the public welfare or for charitable, scientific, educational, humanitarian, philanthropic or religious purposes.

SB423,49,24 (16) Dues. Impose dues, assessments, admission and transfer fees upon its members.

SB423,50,2 (17) Admission of members. Establish conditions for admission of members, admit members and issue memberships.

SB423,50,3 (18) Businesses. Carry on a business.

SB423,50,5 (19) Other. Do all things necessary or convenient, not inconsistent with law, to further the activities and affairs of the corporation.

SB423,50,7 181.0303 Emergency powers. (1) Definition. In this section, "emergency" has the meaning given in s. 181.0207 (1).

SB423,50,9 (2) Powers. In anticipation of or during an emergency, the board or members of a corporation may do all of the following:

SB423,50,11 (a) Modify lines of succession to accommodate the incapacity of a director, officer, employe or agent.

SB423,50,13 (b) Relocate the principal office, designate alternative principal offices or regional offices, or authorize the officers to do so.

SB423,50,15 (3) Meetings. Unless emergency bylaws adopted under s. 181.0207 provide otherwise, all of the following apply to a meeting of the board during an emergency:

SB423,50,18 (a) The corporation need give notice of a meeting of the board only to those directors whom it is practicable to reach and the corporation may give notice in any practicable manner, including by publication and radio.

SB423,50,21 (b) One or more officers of the corporation present at a meeting of the board may be considered to be a director for the meeting, in order of rank and within the same rank in order of seniority, as necessary to achieve a quorum.

SB423,50,25 (4) Action taken during emergency. Corporate action taken in good faith during an emergency under this section to further the ordinary affairs of the corporation binds the corporation and may not be used to impose liability on a corporate director, officer, member, employe or agent.

SB423,51,5 181.0304 Effect of unauthorized corporate acts. No act of a corporation and no conveyance or transfer of real or personal property to or by a corporation shall be invalid by reason of the fact that the corporation was without capacity or power to do such act or to make or receive such conveyance or transfer, except that lack of capacity or power may be asserted in all of the following cases:

SB423,51,17 (1) Proceedings by members or directors. A proceeding by a member or director against the corporation to enjoin the doing of any act or the transfer of real or personal property by or to the corporation. If the unauthorized acts or transfer sought to be enjoined is being, or is to be, performed or made pursuant to any contract to which the corporation is a party, the court may, if all of the parties to the contract are parties to the proceeding, and if the court considers the same to be equitable, set aside and enjoin the performance of the contract. The court may allow to the corporation or to the other parties to the contract, as the case may be, compensation for the loss or damage sustained by either of them as a result of the action of the court in setting aside and enjoining the performance of the contract. Anticipated profits to be derived from the performance of the contract may not be awarded by the court as a loss or damage sustained.

SB423,51,21 (2) Proceedings by the corporation. A proceeding by the corporation, whether acting directly or through a receiver, trustee or other legal representative, or through members in a representative suit, against the incumbent or former officers or directors of the corporation.

SB423,51,24 (3) Proceedings by the attorney general. A proceeding by the attorney general, as provided in this chapter, to dissolve the corporation, or a proceeding by the attorney general to enjoin the corporation from performing unauthorized acts.

SB423,52,3 181.0320 Private foundations. (1) Prohibited acts. A private foundation, as defined in section 509 (a) of the Internal Revenue Code, may not do any of the following:

SB423,52,6 (a) Engage in any act of self-dealing, as defined in section 4941 (d) of the Internal Revenue Code, which would give rise to any liability for the tax imposed by section 4941 (a) of the Internal Revenue Code.

SB423,52,9 (b) Retain any excess business holdings, as defined in section 4943 (c) of the Internal Revenue Code, which would give rise to any liability for the tax imposed by section 4943 (a) of the Internal Revenue Code.

SB423,52,13 (c) Make any investment which would jeopardize the carrying out of any of its exempt purposes, within the meaning of section 4944 of the Internal Revenue Code, so as to give rise to any liability for the tax imposed by section 4944 (a) of the Internal Revenue Code.

SB423,52,16 (d) Make any taxable expenditures, as defined in section 4945 (d) of the Internal Revenue Code, which would give rise to any liability for the tax imposed by section 4945 (a) of the Internal Revenue Code.

SB423,52,21 (2) Required distributions. Each corporation that is a private foundation, as defined in section 509 of the Internal Revenue Code, shall distribute, for the purposes specified in its articles of organization, for each taxable year, amounts at least sufficient to avoid liability for the tax imposed by section 4942 (a) of the Internal Revenue Code.

SB423,53,2 (3) Exceptions. Subsections (1) and (2) do not apply to any corporation to the extent that a court of competent jurisdiction shall determine that such application would be contrary to the terms of the articles of organization or other instrument governing such corporation or governing the administration of charitable funds held by it and that the same may not properly be changed to conform to such subsections.

SB423,53,5 (4) Powers of courts and attorney general. This section does not impair the rights and powers of the courts or the attorney general of this state with respect to any corporation.

SB423,53,9 181.0330 Offer and sale of securities. A corporation or a foreign corporation may not offer or sell any of its securities in this state, unless the securities are registered under ch. 551 or unless the securities or the offer or sale of the securities is exempt from registration under ch. 551.

SB423,53,11 Subchapter IV Name

SB423,53,13 181.0401 Corporate name. (1) General requirements. (a) The corporate name of a corporation:

SB423,53,16 1. Shall contain the word "corporation", "incorporated", "company" or "limited" or the abbreviation "corp.", "inc.", "co." or "ltd." or words or abbreviations of like import in another language, except as provided in par. (b).

SB423,53,19 2. May not contain language stating or implying that the corporation is organized for a purpose other than that permitted by s. 181.0301 and its articles of incorporation.

SB423,53,21 (b) A corporation in existence on the effective date of this paragraph .... [revisor inserts date], need not change its name to comply with par. (a) 1.

SB423,53,24 (2) Distinguishability. (a) Except as provided in subs. (3) and (4), the corporate name of a domestic corporation must be distinguishable upon the records of the department from all of the following names:

SB423,54,2 1. The corporate name of a domestic corporation or a foreign corporation authorized to transact business in this state.

SB423,54,4 2. The corporate name of a stock corporation or a foreign stock corporation authorized to transact business in this state.

SB423,54,6 3. A name reserved or registered under this chapter or ch. 178, 179, 180, 183 or 185.

SB423,54,9 4. The corporate name of a dissolved corporation or stock corporation that has retained the exclusive use of its name under s. 181.1405 (3) or under s. 180.1405 (3), respectively.

SB423,54,11 5. The fictitious name adopted by a foreign corporation or a foreign stock corporation authorized to transact business in this state.

SB423,54,13 6. The name of a limited partnership formed under the laws of, or registered in, this state.

SB423,54,15 7. The name of a cooperative association incorporated or authorized to transact business in this state.

SB423,54,17 8. The name of a limited liability company organized under the laws of, or registered in, this state.

SB423,54,19 9. The name of a limited liability partnership formed under the laws of, or registered in, this state.

SB423,54,24 (b) The corporate name of a corporation is not distinguishable from a name referred to in par. (a) 1. to 9. if the only difference between it and the other name is the inclusion or absence of a word or words referred to in sub. (1) (a) 1. or of the words "limited partnership", "limited liability partnership", "cooperative" or "limited liability company" or an abbreviation of these words.

SB423,55,4 (3) Application to use nondistinguishable name. A corporation may apply to the department for authorization to use a name that is not distinguishable upon the records of the department from one or more of the names described in sub. (2). The department shall authorize use of the name applied for if any of the following occurs:

SB423,55,9 (a) The other corporation or the foreign corporation, limited liability company, stock corporation, limited partnership, limited liability partnership or cooperative association consents to the use in writing and submits an undertaking in a form satisfactory to the department to change its name to a name that is distinguishable upon the records of the department from the name of the applicant.

SB423,55,12 (b) The applicant delivers to the department a certified copy of a final judgment of a court of competent jurisdiction establishing the applicant's right to use the name applied for in this state.

SB423,55,16 (4) Corporate reorganizations. A corporation may use the name, including the fictitious name, that is used in this state by another domestic or foreign corporation or stock corporation authorized to transact business in this state if the corporation proposing to use the name has done any of the following:

SB423,55,17 (a) Merged with the other domestic or foreign corporation or stock corporation.

SB423,55,19 (b) Been formed by reorganization of the other domestic or foreign corporation or stock corporation.