SB423: Bill Text

SB423,75,6 (4) Quorum to take up additional matters. The only matters that may be voted upon at an annual or regular meeting of members are those matters that are described in the meeting notice, unless at least one of the following conditions is met:

SB423,75,8 (a) One-third or more of the voting power of the membership is present in person or by proxy.

SB423,75,10 (b) The meeting notice contains a general statement that matters other than those specifically described in the notice may be considered at the meeting.

SB423,75,15 181.0723 Voting requirements. (1) In general. A majority of the votes entitled to be cast by the members present in person or represented by proxy at a meeting at which a quorum is present shall be necessary for the adoption of any matter voted upon by the members, unless a greater proportion is required by this chapter, the articles of incorporation or the bylaws.

SB423,75,18 (2) Amendment to change voting requirements. A bylaw amendment to increase or decrease the vote required for any member action must be approved by the members.

SB423,75,24 (3) Votes by corporations and limited liability companies. A corporate member's vote may be cast by the president of the member corporation, or by any other officer or proxy appointed by the president of such corporation, in the absence of express notice of the designation of some other person by the board of directors or bylaws of the member corporation. A limited liability company member's vote may be cast by a manager of the member limited liability company.

SB423,76,4 181.0724 Proxies. (1) Right to vote by proxy. Unless the articles of incorporation or bylaws prohibit or limit proxy voting, a member may appoint a proxy to vote or otherwise act for the member by signing an appointment form either personally or by an attorney-in-fact.

SB423,76,8 (2) When effective. An appointment of a proxy is effective when received by the secretary or other officer or agent authorized to tabulate votes. An appointment is valid for 11 months unless a different period is expressly provided in the appointment form.

SB423,76,13 (3) Effect of death or incapacity. The death or incapacity of the member appointing a proxy does not affect the right of the corporation to accept the proxy's authority unless notice of the death or incapacity is received by the secretary or other officer or agent authorized to tabulate votes before the proxy exercises authority under the appointment.

SB423,76,15 (4) Revocability. An appointment of a proxy is revocable by the member unless the appointment form conspicuously states that it is irrevocable.

SB423,76,17 (5) Methods of revocation. Appointment of a proxy is revoked by the person appointing the proxy in any of the following ways:

SB423,76,18 (a) Attending any meeting and voting in person.

SB423,76,21 (b) Signing and delivering to the secretary or other officer or agent authorized to tabulate proxy votes either a writing stating that the appointment of the proxy is revoked or a subsequent appointment form.

SB423,76,25 (6) Acceptance by corporation. Subject to s. 181.0727 and any express limitation on the proxy's authority appearing on the face of the appointment form, a corporation is entitled to accept the proxy's vote or other action as that of the member making the appointment.

SB423,77,5 181.0725 Cumulative voting for directors. (1) In general. If the articles of incorporation or bylaws provide for cumulative voting by members, members may so vote, by multiplying the number of votes the members are entitled to cast by the number of directors for whom they are entitled to vote, and cast the product for a single candidate or distribute the product among 2 or more candidates.

SB423,77,7 (2) When not authorized. Cumulative voting is not authorized at a particular meeting unless any of the following occurs:

SB423,77,9 (a) The meeting notice or statement accompanying the notice states that cumulative voting will take place.

SB423,77,13 (b) A member gives notice during the meeting and before the vote is taken of the member's intent to cumulate votes, and if one member gives this notice all other members participating in the election are entitled to cumulate their votes without giving further notice.

SB423,77,20 (3) Removal of directors. A director elected by cumulative voting may be removed by the members without cause if the requirements of s. 181.0808 are met unless the votes cast against removal, or not consenting in writing to such removal, would be sufficient to elect such director if voted cumulatively at an election at which the same total number of votes were cast, or, if such action is taken by written ballot, all memberships entitled to vote were voted, and the entire number of directors authorized at the time of the director's most recent election were then being elected.

SB423,77,22 (4) Identical membership and directors. Members may not cumulatively vote if the directors and members are identical.

SB423,78,2 181.0726 Other methods of electing directors. A corporation may provide in its articles of incorporation or bylaws for election of directors by members or delegates on the basis of chapter or other organizational unit; by region or other geographic unit; by preferential voting; or by any other reasonable method.

SB423,78,7 181.0727 Acceptance of instruments showing member action. (1) When name corresponds to member. If the name signed on a vote, consent, waiver, or proxy appointment corresponds to the name of a member, the corporation if acting in good faith is entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the member.

SB423,78,12 (2) When name does not correspond to member. If the name signed on a vote, consent, waiver, or proxy appointment does not correspond to the record name of a member, the corporation if acting in good faith is nevertheless entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the member if any of the following conditions exists:

SB423,78,14 (a) The member is an entity and the name signed purports to be that of an officer or agent of the entity.

SB423,78,18 (b) The name signed purports to be that of an attorney-in-fact of the member and if the corporation requests, evidence acceptable to the corporation of the signatory's authority to sign for the member has been presented with respect to the vote, consent, waiver, or proxy appointment.

SB423,78,21 (c) Two or more persons hold the membership as cotenants or fiduciaries and the name signed purports to be the name of at least one of the coholders and the person signing appears to be acting on behalf of all of the coholders.

SB423,79,2 (3) When corporation is entitled to reject. The corporation is entitled to reject a vote, consent, waiver, or proxy appointment if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory's authority to sign for the member.

SB423,79,6 (4) Liability. The corporation and its officer or agent who accepts or rejects a vote, consent, waiver, or proxy appointment in good faith and in accordance with the standards of this section are not liable in damages to the member for the consequences of the acceptance or rejection.

SB423,79,9 (5) Validity of action. Corporate action based on the acceptance or rejection of a vote, consent, waiver, or proxy appointment under this section is valid unless a court of competent jurisdiction determines otherwise.

SB423,79,13 181.0730 Voting agreements. (1) Permissible agreements. Unless prohibited by a corporation's articles of incorporation or bylaws, two or more members may provide for the manner in which they will vote by signing an agreement for that purpose.

SB423,79,15 (2) Enforceability. A voting agreement created under this section is specifically enforceable.

SB423,79,22 181.0735 Voting power. Voting power is determined by taking the total number of votes entitled to be cast for the election of directors at the time the determination of voting power is made, excluding a vote which is contingent upon the happening of a condition or event that has not occurred at the time. Where a class is entitled to vote as a class for directors, the determination of voting power of the class shall be based on the percentage of the number of directors the class is entitled to elect out of the total number of authorized directors.

SB423,80,2 181.0740 Derivative proceedings; definition. In ss. 181.0740 to 181.0747, "derivative proceeding" means a civil suit in the right of a corporation or, to the extent provided in ss. 181.0741, 181.0743 and 181.0745 to 181.0747, in the right of a foreign corporation.

SB423,80,7 181.0741 Derivative proceedings; standing. A derivative proceeding may be brought in the right of a corporation or foreign corporation to procure a judgment in its favor by one or more members having 5% or more of the voting power or by 50 members, whichever is less, if each of these members meets all of the following conditions:

SB423,80,10 (1) Membership. The member was a member of the corporation at the time of the act or omission complained of or became a member through transfer by operation of law from a person who was a member at that time.

SB423,80,12 (2) Representing corporation's interests. The member fairly and adequately represents the interests of the corporation in enforcing the right of the corporation.

SB423,80,14 181.0742 Derivative proceedings; demand. No member may commence a derivative proceeding until all of the following occur:

SB423,80,16 (1) Written demand. A written demand is made upon the corporation to take suitable action.

SB423,80,21 (2) Expiration of 90-day period. Ninety days expire from the date on which a demand under sub. (1) was made, unless the member is notified before the expiration of the 90 days that the corporation has rejected the demand or unless irreparable injury to the corporation would result by waiting for the expiration of the 90-day period.

SB423,80,25 181.0743 Derivative proceedings; stay of proceedings. If the corporation or foreign corporation commences an inquiry into the allegations made in the demand under s. 181.0742 (1) or in the complaint, the court may stay any derivative proceeding for the period that the court considers appropriate.

SB423,81,7 181.0744 Derivative proceedings; dismissal. (1) When dismissal required. The court shall dismiss a derivative proceeding on motion by the corporation if the court finds, subject to the burden of proof assigned under sub. (5) or (6), that one of the groups specified in sub. (2) or (6) has determined, acting in good faith after conducting a reasonable inquiry upon which its conclusions are based, that maintenance of the derivative proceeding is not in the best interests of the corporation.

SB423,81,9 (2) Independent director determination. Unless a panel is appointed under sub. (6), the determination in sub. (1) shall be made by any of the following:

SB423,81,11 (a) A majority vote of independent directors present at a meeting of the board of directors if the independent directors constitute a quorum.

SB423,81,15 (b) A majority vote of a committee consisting of 2 or more independent directors appointed by a majority vote of the independent directors present at a meeting of the board of directors, whether or not the voting independent directors constitute a quorum.

SB423,81,18 (3) Who is considered an independent director. Whether a director is independent for purposes of this section may not be determined solely on the basis of any one or more of the following factors:

SB423,81,20 (a) The nomination or election of the director by persons who are defendants in the derivative proceeding or against whom action is demanded.

SB423,81,22 (b) The naming of the director as a defendant in the derivative proceeding or as a person against whom action is demanded.

SB423,81,24 (c) The approval by the director of the act being challenged in the derivative proceeding or demand if the act resulted in no personal benefit to the director.

SB423,82,3 (4) Pleadings when demand rejected. If a derivative proceeding is commenced after a determination was made rejecting a demand by a member, the complaint shall allege with particularity facts establishing any of the following:

SB423,82,5 (a) That a majority of the board of directors did not consist of independent directors at the time that the determination was made.

SB423,82,6 (b) That the requirements of sub. (1) have not been met.

SB423,82,12 (5) Burden of proof. If a majority of the board of directors did not consist of independent directors at the time that the determination rejecting a demand was made, the corporation shall have the burden of proving that the requirements of sub. (1) have been met. If a majority of the board of directors consisted of independent directors at the time that the determination was made, the members shall have the burden of proving that the requirements of sub. (1) have not been met.

SB423,82,17 (6) Court-appointed panel. Upon motion by the corporation, the court may appoint a panel of one or more independent persons to determine whether maintenance of the derivative proceeding is in the best interests of the corporation. If a panel is appointed under this subsection, the members shall have the burden of proving that the requirements of sub. (1) have not been met.

SB423,82,20 181.0745 Derivative proceedings; discontinuance or settlement. A derivative proceeding may not be discontinued or settled without the court's approval.

SB423,82,23 181.0746 Derivative proceedings; payment of expenses. (1) Authority of court. On termination of the derivative proceeding, the court may do any of the following:

SB423,83,4 (a) Notwithstanding s. 814.04 (1), order the domestic corporation or foreign corporation to pay the plaintiff's reasonable expenses, including attorney fees, incurred in the derivative proceeding by the members who commenced or maintained the derivative proceeding if the court finds that the derivative proceeding has resulted in a substantial benefit to the domestic corporation or foreign corporation.

SB423,83,9 (b) Order the members who commenced or maintained the derivative proceeding to pay any defendant's reasonable expenses, including attorney fees, notwithstanding s. 814.04 (1), incurred in defending the derivative proceeding if the court finds that the derivative proceeding was commenced or maintained without reasonable cause or for an improper purpose.

SB423,83,15 (2) Security for expenses. In any action brought in the right of any corporation by fewer than 3% of the members, the defendants shall be entitled, upon application to the court, to require the plaintiffs to give security for the reasonable expenses, including attorney fees. The amount of the security may be increased or decreased by the court having jurisdiction over the action upon a showing that the security has or may become inadequate or excessive.

SB423,83,19 181.0747 Derivative proceedings; applicability. (1) To foreign corporations. In any derivative proceeding in the right of a foreign corporation, the matters covered by ss. 181.0741, 181.0742 and 181.0744 shall be governed by the laws of the jurisdiction of incorporation of the foreign corporation.

SB423,83,23 (2) To corporations without members. Unless the articles of incorporation or bylaws provided otherwise at the time of the act or omission complained of, ss. 181.0741 to 181.0746 apply to corporations without members, except that all references to "member" shall be read as "director".

SB423,83,25 Subchapter VIII Directors and officers

SB423,84,2 181.0801 Requirement for and duties of board. (1) Board required. A corporation shall have a board.

SB423,84,5 (2) Powers of board. Except as provided in this chapter or sub. (3), all corporate powers shall be exercised by or under the authority of, and the affairs of the corporation managed under the direction of, its board.

SB423,84,10 (3) Delegation. (a) The articles of incorporation or bylaws approved by the members, if any, may authorize a person to exercise some or all of the powers which would otherwise be exercised by a board. To the extent so authorized such a person shall have the duties and responsibilities of the board, and the directors shall be relieved to that extent from such duties and responsibilities.

SB423,84,12 (b) A person is not a member of the board solely because of powers delegated to that person under par. (a).

SB423,84,16 181.0802 Qualifications of directors. A director shall be an individual. The articles of incorporation or bylaws may prescribe other qualifications for directors. A director need not be a resident of this state or a member of the corporation unless the articles of incorporation or bylaws so prescribe.

SB423,84,19 181.0803 Number of directors. (1) Minimum number. A board shall consist of 3 or more individuals, with the number specified in or fixed in accordance with the articles of incorporation or bylaws.

SB423,84,22 (2) Changes in board size. The number of directors may be increased or, subject to sub. (1), decreased from time to time by amendment to, or in the manner provided in, the articles of incorporation or bylaws.

SB423,85,3 181.0804 Election, designation and appointment of directors. (1) Corporation with members. If the corporation has members, all of the directors except the initial directors shall be elected at the first annual meeting of members, and at each annual meeting thereafter, unless the articles of incorporation or bylaws provide some other time or method of election, or provide that some of the directors are appointed by some other person or are designated.

SB423,85,8 (2) Corporation without members. If the corporation does not have members, all of the directors except the initial directors shall be elected, appointed or designated as provided in the articles of incorporation or bylaws. If no method of designation or appointment is set forth in the articles of incorporation or bylaws, the directors other than the initial directors shall be elected by the board.

SB423,85,12 181.0805 Terms of directors generally. (1) In general. The articles of incorporation or bylaws shall specify the term of a director. In the absence of any term specified in the articles of incorporation or bylaws, the term of a director shall be one year. Directors may be elected for successive terms.

SB423,85,14 (2) Effect of changes on incumbent. A decrease in the number of directors or term of office does not shorten an incumbent director's term.

SB423,85,18 (3) Vacancies. Except as provided in the articles of incorporation or bylaws, the term of a director filling a vacancy in the office of a director elected by members expires at the next election of directors by members and the term of a director filling any other vacancy expires at the end of the unexpired term that the director is filling.

SB423,85,23 (4) Service after expiration of term. Except as provided in the articles of incorporation or bylaws, despite the expiration of a director's term, the director continues to serve, subject to ss. 181.0807 to 181.0810, until the director's successor is elected, designated or appointed and qualifies, or until there is a decrease in the number of directors.

SB423,85,25 181.0806 Staggered terms for directors. Directors may be divided into classes and the terms of office of the several classes need not be uniform.

SB423,86,3 181.0807 Resignation of directors. (1) Notice. A director may resign at any time by delivering written notice to the presiding officer of the board or to the president or secretary.

SB423,86,8 (2) When effective. A resignation is effective when the notice is received unless the notice specifies a later effective date. If a resignation is made effective at a later date, the board may make the effective date earlier and fill the pending vacancy before the effective date if the board provides that the successor does not take office until the effective date.

SB423,86,11 181.0808 Removal of directors elected by members or directors. Except as otherwise provided in the articles of incorporation or bylaws of a corporation, all of the following apply:

SB423,86,13 (1) Removal in general. The members may remove, with or without cause, one or more directors elected by them.

SB423,86,16 (2) Removal of directors elected by group. If a director is elected by a class, chapter or other organizational unit or by region or other geographic grouping, the director may be removed only by the members of that class, chapter, unit or grouping.

SB423,86,20 (3) Number of votes needed to remove. Except as provided in sub. (8), a director may be removed under sub. (1) or (2) only if the number of votes cast to remove the director would be sufficient to elect the director at a meeting to elect directors.

SB423,86,25 (4) Cumulative voting. If cumulative voting is authorized, a director may not be removed if the number of votes, or if the director was elected by a class, chapter, unit or grouping of members, the number of votes of that class, chapter, unit or grouping, sufficient to elect the director under cumulative voting is voted against the director's removal.

SB423,87,4 (5) Meeting. A director elected by members may be removed by the members only at a meeting called for the purpose of removing the director and the meeting notice must state that the purpose, or one of the purposes, of the meeting is removal of the director.

SB423,87,5 (6) Entire board. An entire board may be removed under subs. (1) to (5).

SB423,87,10 (7) Board-elected directors. A director elected by the board may be removed without cause by the vote of a majority of the directors then in office or such other number as is set forth in the articles of incorporation or bylaws. However, a director elected by the board to fill the vacancy of a director elected by the members may be removed without cause by the members, but not the board.

SB423,87,14 (8) Failure to attend meetings. If, at the beginning of a director's term on the board, the articles of incorporation or bylaws provide that the director may be removed for missing a specified number of board meetings, the board may remove the director for failing to attend the specified number of meetings.

SB423,87,19 181.0809 Removal of designated or appointed directors. (1) Designated directors. A designated director may be removed by an amendment to the articles of incorporation or bylaws deleting or changing the designation. The removal shall be effective on the effective date of the amendment to the articles of incorporation or bylaws, unless the amendment specifies a different date.

SB423,87,22 (2) Appointed directors. (a) Except as otherwise provided in the articles of incorporation or bylaws, an appointed director may be removed without cause by the person appointing the director.

SB423,87,25 (b) The person removing an appointed director shall do so by giving written notice of the removal to the appointed director and either the presiding officer of the board or the corporation's president or secretary.