SB423: Bill Text

SB423,136,3 3. That the members are deadlocked in voting power and have failed, for a period that includes at least 2 consecutive annual meeting dates, to elect successors to directors whose terms have, or would otherwise have, expired.

SB423,136,4 4. That the corporate assets are being misapplied or wasted.

SB423,136,5 5. That the corporation is no longer able to carry out its purposes.

SB423,136,6 (c) A creditor if any of the following is established:

SB423,136,8 1. That the creditor's claim has been reduced to judgment, the execution on the judgment has been returned unsatisfied and the corporation is insolvent.

SB423,136,10 2. That the corporation has admitted in writing that the creditor's claim is due and owing and the corporation is insolvent.

SB423,136,12 (d) The corporation to have its voluntary dissolution continued under court supervision.

SB423,136,14 (2) Factors required to be considered. Before dissolving a corporation, the court shall consider all of the following:

SB423,136,15 (a) Whether there are reasonable alternatives to dissolution.

SB423,136,18 (b) Whether dissolution is the best way of protecting the interests of members or, if the corporation has no members, is in the interest of those persons or interests whom the corporation holds itself as benefiting or serving.

SB423,136,21 181.1431 Procedure for judicial dissolution. (1) Who are parties. It is not necessary to make directors or members parties to a proceeding to dissolve a corporation unless relief is sought against them individually.

SB423,137,2 (2) Powers of court. A court in a proceeding brought to dissolve a corporation may issue injunctions, appoint a receiver or custodian pendente lite with all powers and duties the court directs, take other action required to preserve the corporate assets wherever located, and carry on the activities of the corporation until a full hearing can be held.

SB423,137,9 181.1432 Receivership or custodianship. (1) Powers of court. A court in a judicial proceeding brought to dissolve a corporation may appoint one or more receivers to wind up and liquidate, or one or more custodians to manage, the affairs of the corporation. The court shall hold a hearing, after notifying all parties to the proceeding and any interested persons designated by the court, before appointing a receiver or custodian. The court appointing a receiver or custodian has exclusive jurisdiction over the corporation and all of its property wherever located.

SB423,137,14 (2) Who may serve as receiver or custodian. The court may appoint an individual, or a domestic or foreign corporation or stock corporation authorized to transact business in this state, as a receiver or custodian. The court may require the receiver or custodian to post bond, with or without sureties, in an amount the court directs.

SB423,137,17 (3) Powers and duties of receiver or custodian. (a) The court shall describe the powers and duties of the receiver or custodian in its appointing order, which may be amended from time to time.

SB423,137,18 (b) A receiver may exercise, but is not limited to, all of the following powers:

SB423,137,22 1. To dispose of all or any part of the assets of the corporation wherever located, at a public or private sale, if authorized by the court; provided, however, that the receiver's power to dispose of the assets of the corporation is subject to any trust and other restrictions that would be applicable to the corporation.

SB423,137,24 2. To sue and defend in the receiver's name as receiver of the corporation in all courts of this state.

SB423,138,5 (c) A custodian may exercise all of the powers of the corporation, through or in place of its board or officers, to the extent necessary to manage the affairs of the corporation in the best interests of its members and creditors and may sue and defend in the custodian's name as custodian of the corporation in all courts in this state.

SB423,138,9 (4) Redesignation. The court during a receivership may redesignate the receiver a custodian, and during a custodianship may redesignate the custodian a receiver, if doing so is in the best interests of the corporation, its members, and creditors.

SB423,138,14 (5) Compensation and expenses. The court from time to time during the receivership or custodianship may order compensation paid and expense disbursements or reimbursements made to the receiver or custodian and the receiver's or custodian's counsel from the assets of the corporation or proceeds from the sale of the assets.

SB423,138,19 181.1433 Decree of dissolution. (1) Entering decree. If after a hearing the court determines that one or more grounds for judicial dissolution under s. 181.1430 exist, it may enter a decree dissolving the corporation and specifying the effective date of the dissolution, and the clerk of the court shall deliver a certified copy of the decree to the department, who shall file it.

SB423,138,23 (2) Effect of decree. After entering the decree of dissolution, the court shall direct the winding up and liquidation of the corporation's affairs in accordance with s. 181.1405 and the notification of its claimants in accordance with ss. 181.1406 and 181.1407.

SB423,139,7 181.1440 Deposit with state treasurer. Assets of a dissolved corporation that should be transferred to a creditor, claimant, or member of the corporation who cannot be found or who is not competent to receive them, shall be reduced to cash subject to known trust restrictions and deposited with the state treasurer for safekeeping. However, in the state treasurer's discretion property may be received and held in kind. When the creditor, claimant, or member furnishes satisfactory proof of entitlement to the amount deposited or property held in kind, the state treasurer shall deliver to the creditor, member or other person or his or her representative that amount or property.

SB423,139,9 Subchapter XV Foreign corporations

SB423,139,12 181.1501 Authority to transact business required. (1) In general. A foreign corporation may not transact business in this state until it obtains a certificate of authority from the department.

SB423,139,14 (2) Permitted activities. The following activities, among others, do not constitute transacting business in this state within the meaning of this subchapter:

SB423,139,16 (a) Maintaining, defending or settling any civil, criminal, administrative or investigatory proceeding.

SB423,139,18 (b) Holding meetings of the board or members or carrying on other activities concerning internal corporate affairs.

SB423,139,19 (c) Maintaining bank accounts.

SB423,139,22 (d) Maintaining offices or agencies for the transfer, exchange and registration of the foreign corporation's memberships or maintaining trustees or depositaries with respect to those memberships.

SB423,139,23 (e) Selling through independent contractors.

SB423,140,3 (f) Soliciting or obtaining orders, whether by mail or through employes or agents or otherwise, if the orders require acceptance outside this state before they become contracts.

SB423,140,5 (g) Creating or acquiring indebtedness, mortgages and security interests in property.

SB423,140,7 (h) Securing or collecting debts or enforcing mortgages and security interests in property securing the debts.

SB423,140,8 (i) Owning, without more, property.

SB423,140,10 (j) Conducting an isolated transaction that is completed within 30 days and that is not one in the course of repeated transactions of a like nature.

SB423,140,11 (k) Transacting business in interstate commerce.

SB423,140,16 181.1502 Consequences of transacting business without authority. (1) Court proceedings barred. A foreign corporation transacting business in this state without a certificate of authority, if a certificate of authority is required under s. 181.1501, may not maintain a proceeding in any court in this state until it obtains a certificate of authority.

SB423,140,21 (2) Successors to foreign corporations. The successor to a foreign corporation that transacted business in this state without a certificate of authority and the assignee of a cause of action arising out of that business may not maintain a proceeding on that cause of action in any court in this state until the foreign corporation or its successor obtains a certificate of authority.

SB423,141,2 (3) Stay of proceedings. A court may stay a proceeding commenced by a foreign corporation, its successor or its assignee until the court determines whether the foreign corporation or its successor requires a certificate of authority. If it so determines, the court may further stay the proceeding until the foreign corporation or its successor obtains the certificate.

SB423,141,8 (4) Penalties. (a) Beginning on the first day of the 13th month beginning after the effective date of this paragraph .... [revisor inserts date], a foreign corporation that transacts business in this state without a certificate of authority is liable to the state, for each year or any part of a year during which it transacted business in this state without a certificate of authority, in an amount equal to the sum of all of the following:

SB423,141,11 1. All fees that would have been imposed under this chapter upon the foreign corporation had it applied for and received a certificate of authority when it began transacting business in this state.

SB423,141,13 2. A fee of $50 for each year or portion of a year during which it transacted business without a certificate of authority or $500, whichever is less.

SB423,141,18 (b) The foreign corporation shall pay the amount owed under par. (a) to the department. The department may not issue a certificate of authority to the foreign corporation until the amount owed under par. (a) is paid. The attorney general may enforce a foreign corporation's obligation to pay the department any amount owed under par. (a).

SB423,141,23 (5) Validity of corporate actions. Notwithstanding subs. (1) and (2), the failure of a foreign corporation to obtain a certificate of authority does not impair the validity of its corporate acts or its title to property in this state or prevent it from defending any civil, criminal, administrative or investigatory proceeding in this state.

SB423,142,3 181.1503 Application for certificate of authority. (1) Filing requirements. A foreign corporation may apply for a certificate of authority to transact business in this state by delivering an application to the department for filing. The application shall be made on a form prescribed by the department and shall include all of the following information:

SB423,142,5 (a) The name of the foreign corporation or, if its name is unavailable for use in this state, a fictitious name that satisfies s. 181.1506.

SB423,142,6 (b) The name of the state or country under whose law it is incorporated.

SB423,142,7 (c) Its date of incorporation and period of duration.

SB423,142,8 (d) The street address of its principal office.

SB423,142,10 (e) The street address of its registered office in this state and the name of its registered agent at that office.

SB423,142,12 (f) The name and usual business or home address of each of its current directors and principal officers.

SB423,142,13 (g) Whether the foreign corporation has members.

SB423,142,14 (h) A statement that the corporation is organized without capital stock.

SB423,142,19 (2) Authentication. The foreign corporation shall deliver with the completed application a certificate of status or a document of similar import authenticated by the secretary of state or other official having custody of corporate records in the state or country under whose law it is incorporated. The certificate shall be dated no earlier than 60 days before its delivery.

SB423,142,23 181.1504 Amended certificate of authority. (1) When required. A foreign corporation authorized to transact business in this state shall obtain an amended certificate of authority from the department if the foreign corporation changes any of the following:

SB423,142,25 (a) Its corporate name or the fictitious name under which it has been issued a certificate of authority.

SB423,143,1 (b) The period of its duration.

SB423,143,2 (c) The state or country of its incorporation.

SB423,143,6 (2) Filing and authentication requirements. The requirements of s. 181.1503 for obtaining an original certificate of authority apply to obtaining an amended certificate under this section, except that a foreign corporation is not required to deliver a certificate of status with an application solely to change a fictitious name.

SB423,143,10 181.1505 Effect of certificate of authority. (1) Transaction of business. A certificate of authority issued to a foreign corporation authorizes the foreign corporation to transact business in this state subject to the right of the state to revoke the certificate as provided in this chapter.

SB423,143,15 (2) Rights and privileges. A foreign corporation with a valid certificate of authority has the same rights and enjoys the same privileges as and, except as otherwise provided by this chapter, is subject to the same duties, restrictions, penalties and liabilities now or later imposed on, a domestic corporation of like character.

SB423,143,18 (3) Internal affairs. This chapter does not authorize this state to regulate the organization or internal affairs of a foreign corporation authorized to transact business in this state.

SB423,143,24 181.1506 Corporate name of foreign corporation. (1) Fictitious name. If the corporate name of a foreign corporation is not available under sub. (2), the foreign corporation, to obtain or maintain a certificate of authority to transact business in this state, may use a fictitious name to transact business in this state if it delivers to the department for filing a copy of the resolution of its board of directors, certified by any of its officers, adopting the fictitious name.

SB423,144,4 (2) Distinguishability generally required. (a) Except as authorized under subs. (3) and (4), the corporate name, including a fictitious name, of a foreign corporation must be distinguishable upon the records of the department from all of the following names:

SB423,144,6 1. The corporate name of a domestic corporation or a foreign corporation authorized to transact business in this state.

SB423,144,8 2. The corporate name of a stock corporation or a foreign stock corporation authorized to transact business in this state.

SB423,144,10 3. A name reserved or registered under this chapter or ch. 178, 179, 180, 183 or 185.

SB423,144,13 4. The corporate name of a dissolved corporation or stock corporation that has retained the exclusive use of its name under s. 181.1404 (3) or under s. 180.1405 (3), respectively.

SB423,144,15 5. The fictitious name adopted by a foreign corporation or a foreign stock corporation authorized to transact business in this state.

SB423,144,17 6. The name of a limited partnership formed under the laws of, or registered in, this state.

SB423,144,19 7. The name of a cooperative association incorporated or authorized to transact business in this state.

SB423,144,21 8. The name of a limited liability company organized under the laws of, or registered in, this state.

SB423,144,23 9. The name of a limited liability partnership formed under the laws of, or registered in, this state.

SB423,145,3 (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 s. 181.0401 (1) (a) 1. or of the words "limited partnership", "limited liability partnership", "cooperative" or "limited liability company" or an abbreviation of these words.

SB423,145,8 (3) Application to use nondistinguishable name. A foreign corporation may apply to the department for authorization to use in this state a name that is not distinguishable upon the records of the department from one or more of the names described under sub. (2). The department shall authorize use of the name applied for if any of the following conditions exists:

SB423,145,13 (a) The other foreign corporation or the domestic corporation, limited liability company, nonstock 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.

SB423,145,16 (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.

SB423,145,21 (4) Corporate reorganizations. A foreign corporation may use in this state the name, including the fictitious name, of another domestic or foreign corporation or stock corporation that is used in this state if the other corporation or stock corporation is incorporated or authorized to transact business in this state and the foreign corporation has done any of the following:

SB423,145,22 (a) Merged with the other domestic or foreign corporation or stock corporation.

SB423,145,24 (b) Been formed by reorganization of the other domestic or foreign corporation or stock corporation.

SB423,146,2 (c) Acquired all or substantially all of the assets, including the corporate name, of the other domestic or foreign corporation or stock corporation.

SB423,146,7 (5) Failure to comply. If a foreign corporation authorized to transact business in this state changes its corporate name to one that does not satisfy the requirements of sub. (2), it shall not transact business in this state under the changed name until it adopts a name satisfying the requirements of sub. (2) and obtains an amended certificate of authority under s. 181.1504.

SB423,146,11 181.1507 Registered office and registered agent. Each foreign corporation shall continuously maintain in this state a registered office and registered agent. The registered office may, but need not, be the same as any of its places of business. The registered agent shall be any of the following:

SB423,146,13 (1) Individuals. An individual who resides in this state and whose business office is identical with the registered office.

SB423,146,16 (2) Domestic entities. A domestic corporation, stock corporation or limited liability company, incorporated or organized in this state, whose business office is identical with the registered office.

SB423,146,19 (3) Foreign entities. A foreign corporation, stock corporation or limited liability company, authorized to transact business in this state, whose business office is identical with the registered office.

SB423,146,24 181.1508 Change of registered office or registered agent of foreign corporation. (1) Filing requirements. A foreign corporation authorized to transact business in this state may change its registered office or registered agent, or both, by delivering to the department for filing a statement of change that, except as provided in sub. (2), includes all of the following information.