180.1134 History
History: 1989 a. 303;
1991 a. 16,
32;
1997 a. 27.
180.1140(1)
(1) "Announcement date" means the date of the first public announcement of the final, definitive proposal for a business combination.
180.1140(2)
(2) "Associate" of a person means any of the following:
180.1140(2)(a)
(a) A corporation or organization of which the person is an officer, director, manager or partner or is the beneficial owner of at least 10% of any class of voting stock.
180.1140(2)(b)
(b) A trust or other estate in which the person has a substantial beneficial interest or as to which the person serves as trustee or in a similar fiduciary capacity.
180.1140(2)(c)
(c) A relative or spouse of the person, or a relative of the spouse, who has the same principal residence as the person.
180.1140(3)(a)(a) "Beneficial owner" of stock means a person, except as provided in
par. (b), that meets any of the following conditions:
180.1140(3)(a)1.
1. Individually, or with or through any of the person's affiliates or associates, beneficially owns the stock, directly or indirectly.
180.1140(3)(a)2.
2. Individually, or with or through any of the person's affiliates or associates, directly or indirectly has the right, whether exercisable immediately or only after the passage of time, to acquire the stock pursuant to a written or unwritten agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise.
180.1140(3)(a)3.
3. Individually, or with or through any of the person's affiliates or associates, directly or indirectly has the right to vote the stock pursuant to a written or unwritten agreement, arrangement or understanding, except that a person is not the beneficial owner of stock under this subdivision if the agreement, arrangement or understanding to vote that stock arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made in accordance with the applicable regulations under the exchange act and is not reportable under the report required under
17 CFR 240.13d-1 (1) (a) or a comparable or successor report.
180.1140(3)(a)4.
4. Has a written or unwritten agreement, arrangement or understanding with another person that is directly or indirectly a beneficial owner, or whose affiliates or associates are direct or indirect beneficial owners, of the stock, if the agreement, arrangement or understanding is for the purpose of acquiring, holding, disposing of or voting the stock, unless the voting is pursuant to a revocable proxy or consent described in
subd. 3.
180.1140(3)(b)
(b) A person is not the direct or indirect beneficial owner of stock tendered pursuant to a tender or exchange offer which is made by that person or an affiliate or associate of that person until the tendered stock is accepted for purchase or exchange.
180.1140(4)
(4) "Business combination" means any of the following:
180.1140(4)(a)
(a) A merger, including a merger under
s. 180.1104, or share exchange of the resident domestic corporation or any subsidiary of the resident domestic corporation with any of the following:
180.1140(4)(a)2.
2. A corporation, whether or not it is an interested stockholder, which is, or after a merger or share exchange would be, an affiliate or associate of an interested stockholder.
180.1140(4)(b)
(b) A sale, lease, exchange, mortgage, pledge, transfer or other disposition, in one transaction or a series of transactions, to or with an interested stockholder or an affiliate or associate of an interested stockholder of assets of the resident domestic corporation or a subsidiary of the resident domestic corporation if those assets meet any of the following conditions:
180.1140(4)(b)1.
1. Have an aggregate market value equal to at least 5% of the aggregate market value of all the assets, determined on a consolidated basis, of the resident domestic corporation.
180.1140(4)(b)2.
2. Have an aggregate market value equal to at least 5% of the aggregate market value of all the outstanding stock of the resident domestic corporation.
180.1140(4)(b)3.
3. Represent at least 10% of the earning power or income, determined on a consolidated basis, of the resident domestic corporation.
180.1140(4)(c)
(c) The issuance or transfer by the resident domestic corporation or a subsidiary of the resident domestic corporation, in one transaction or a series of transactions, of any stock of the resident domestic corporation or a subsidiary of the resident domestic corporation if all of the following conditions are satisfied:
180.1140(4)(c)1.
1. The stock has an aggregate market value equal to at least 5% of the aggregate market value of all the outstanding stock of the resident domestic corporation.
180.1140(4)(c)2.
2. The stock is issued or transferred to an interested stockholder or an affiliate or associate of an interested stockholder, except for stock of the resident domestic corporation or such subsidiary issued or transferred pursuant to the exercise of warrants, rights or options to purchase such stock offered, or a dividend paid, or distribution made, proportionately to all stockholders of the resident domestic corporation.
180.1140(4)(d)
(d) The adoption of a plan or proposal for the liquidation or dissolution of the resident domestic corporation which is proposed by, on behalf of, or pursuant to a written or unwritten agreement, arrangement or understanding with, an interested stockholder or an affiliate or associate of an interested stockholder.
180.1140(4)(e)
(e) Any of the following, if the direct or indirect effect is to increase the proportionate share of the outstanding stock of a class or series or securities convertible into voting stock of the resident domestic corporation or a subsidiary of the resident domestic corporation beneficially owned by the interested stockholder or an affiliate or associate of the interested stockholder, unless the increase is the result of immaterial changes due to fractional share adjustments:
180.1140(4)(e)1.
1. A reclassification of securities, including, without limitation, a stock split, stock dividend or other distribution of stock in respect of stock, or reverse stock split.
180.1140(4)(e)3.
3. A merger or share exchange of the resident domestic corporation with a subsidiary of the resident domestic corporation.
180.1140(4)(e)4.
4. Any other transaction, whether or not with, into or involving the interested stockholder, which is proposed by, on behalf of, or pursuant to a written or unwritten agreement, arrangement or understanding with, the interested stockholder or an affiliate or associate of the interested stockholder.
180.1140(4)(f)
(f) Receipt by an interested stockholder or an affiliate or associate of an interested stockholder of the direct or indirect benefit of a loan, advance, guarantee, pledge or other financial assistance or a tax credit or other tax advantage provided by or through the resident domestic corporation or any subsidiary of the resident domestic corporation, unless the interested stockholder receives the benefit proportionately as a holder of stock of the resident domestic corporation.
180.1140(5)
(5) "Consummation date" means the date of consummation of a business combination.
180.1140(6)(a)(a) "Control", "controlled by" or "under common control with" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting stock, except as provided in
par. (b), by contract, or otherwise.
180.1140(6)(b)
(b) "Control" of a corporation is not established under
par. (a) if a person, in good faith and not for the purpose of circumventing
ss. 180.1140 to
180.1144, holds voting power as an agent, bank, broker, nominee, custodian or trustee for one or more beneficial owners who do not individually or as a group have control of that corporation.
180.1140(7)
(7) "Exchange act" means the securities exchange act of 1934 and amendments thereto.
180.1140(8)(a)(a) "Interested stockholder", with respect to a resident domestic corporation, means a person other than the resident domestic corporation or a subsidiary of the resident domestic corporation that meets any of the following conditions:
180.1140(8)(a)1.
1. Is the beneficial owner of at least 10% of the voting power of the outstanding voting stock of that resident domestic corporation.
180.1140(8)(a)2.
2. Is an affiliate or associate of that resident domestic corporation and at any time within 3 years immediately before the date in question was the beneficial owner of at least 10% of the voting power of the then outstanding voting stock of that resident domestic corporation.
180.1140(8)(b)
(b) For the purpose of determining whether a person is an interested stockholder, the number of shares of voting stock of the resident domestic corporation considered outstanding includes shares beneficially owned by the person but does not include any other unissued shares of voting stock of the resident domestic corporation which may be issuable pursuant to an agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
180.1140(9)(a)(a) "Resident domestic corporation" means a domestic corporation that, as of the stock acquisition date in question, satisfies any of the following:
180.1140(9)(a)2.
2. It has significant business operations located in this state.
180.1140(9)(a)3.
3. More than 10% of the holders of record of its shares are residents of this state.
180.1140(9)(a)4.
4. More than 10% of its shares are held of record by residents of this state.
180.1140(9)(b)
(b) For purposes of
par. (a) 3. and
4., the record date for determining the percentages and numbers of shareholders and shares is the most recent record date established before the stock acquisition date in question, and the residence of each shareholder is the address of the shareholder which appears on the records of the resident domestic corporation.
180.1140(10)(a)
(a) Shares, stock or similar security, certificate of interest, participation in a profit sharing agreement, voting trust certificate, or certificate of deposit for any of the items described in this paragraph.
180.1140(10)(b)
(b) Security which is convertible, with or without consideration, into stock, or any warrant, call or other option or privilege of buying stock, or any other security carrying a right to acquire, subscribe to or purchase stock.
180.1140(11)
(11) "Stock acquisition date", with respect to any person, means the date that that person first becomes an interested stockholder of that resident domestic corporation.
180.1140(12)
(12) "Subsidiary" of a resident domestic corporation means any other corporation, whether or not a domestic corporation, of which voting stock having a majority of the votes entitled to be cast is owned, directly or indirectly, by the resident domestic corporation.
180.1140(13)
(13) "Voting stock" means capital stock of a corporation, whether or not a domestic corporation, entitled to vote generally in the election of directors.
180.1141
180.1141
Restrictions on business combinations. 180.1141(1)(1)
Business combinations during the 3 years after the stock acquisition date. Except as provided in
s. 180.1143, a resident domestic corporation may not engage in a business combination with an interested stockholder of the resident domestic corporation for 3 years after the interested stockholder's stock acquisition date unless the board of directors of the resident domestic corporation has approved, before the interested stockholder's stock acquisition date, that business combination or the purchase of stock made by the interested stockholder on that stock acquisition date.
180.1141(2)
(2) Business combinations more than 3 years after the stock acquisition date. At any time after the 3-year period described in
sub. (1), the resident domestic corporation may engage in a business combination with the interested stockholder but only if any of the following is satisfied:
180.1141(2)(a)
(a) The board of directors of the resident domestic corporation has approved, before the interested stockholder's stock acquisition date, the purchase of stock made by the interested stockholder on that stock acquisition date.
180.1141(2)(b)
(b) The business combination is approved by the affirmative vote of the holders of a majority of the voting stock not beneficially owned by the interested stockholder at a meeting called for that purpose.
180.1141(2)(c)
(c) The business combination meets all of the following conditions:
180.1141(2)(c)1.
1. Holders of all outstanding shares of stock of the resident domestic corporation not beneficially owned by the interested stockholder are each entitled to receive per share an aggregate amount of cash and the market value, as of the consummation date, of noncash consideration at least equal to the higher of the following:
180.1141(2)(c)1.a.
a. The highest of: the market value per share on the announcement date with respect to the business combination, the market value per share on the interested stockholder's stock acquisition date, the highest price per share paid by the interested stockholder, including brokerage commissions, transfer taxes and soliciting dealers' fees, for shares of the same class or series within the 3 years immediately before and including the announcement date of the business combination, or the highest price per share paid by the interested stockholder, including brokerage commissions, transfer taxes and soliciting dealers' fees, for shares of the same class or series within the 3 years immediately before and including the interested stockholder's stock acquisition date; plus, in each case, interest compounded annually from the earliest date on which that highest per share acquisition price was paid or the per share market value was determined, through the consummation date, at the rate for one-year U.S. treasury obligations from time to time in effect; less the aggregate amount of any cash and the market value, as of the dividend payment date, of any noncash dividends paid per share since that date, up to the amount of that interest.
180.1141(2)(c)1.b.
b. The highest preferential amount per share, if any, to which the holders of shares of that class or series of stock are entitled upon the voluntary or involuntary liquidation of the resident domestic corporation, plus the aggregate amount of dividends declared or due which those holders are entitled to before payment of dividends on another class or series of stock, unless the aggregate amount of those dividends is included in the preferential amount.
180.1141(2)(c)2.
2. The form of consideration to be received by holders of each particular class or series of outstanding stock in the business combination is in cash or, if the interested stockholder previously acquired shares of that class or series, the same form as the interested stockholder previously used to acquire the largest number of shares of that class or series.
180.1141 History
History: 1989 a. 303;
1991 a. 39.
180.1142
180.1142
Determining market value and control. 180.1142(1)(1) For purposes of
ss. 180.1140 to
180.1144, the market value of stock or property other than cash or stock is determined as follows:
180.1142(1)(a)1.
1. The highest closing sale price during the 30 days immediately before the date in question of a share of that class or series of stock on the composite tape for stocks listed on the New York stock exchange, or, if that class or series of stock is not quoted on the composite tape or if that class or series of stock is not listed on the New York stock exchange, on the principal U.S. securities exchange registered under the exchange act on which that class or series of stock is listed.
180.1142(1)(a)2.
2. If that class or series of stock is not listed on an exchange described in
subd. 1., the highest closing bid quotation for a share of that class or series of stock during the 30 days immediately before the date in question on the National Association of Securities Dealers automated quotation system, or any similar system then in use.
180.1142(1)(a)3.
3. If no quotations described in
subd. 2. are available, the fair market value on the date in question of a share of that class or series of stock as determined in good faith by the board of directors of the resident domestic corporation.
180.1142(1)(b)
(b) In the case of property other than cash or stock, the fair market value of the property on the date in question as determined in good faith by the board of directors of the resident domestic corporation.
180.1142(2)
(2) For purposes of
ss. 180.1140 to
180.1144, a person's beneficial ownership of at least 10% of the voting power of a corporation's outstanding voting stock creates a presumption that the person has control of the corporation.
180.1142 History
History: 1989 a. 303;
1991 a. 39.
180.1143
180.1143
Exclusions from business combination restrictions. Sections 180.1140 to
180.1144 do not apply to any of the following:
180.1143(1)
(1) Unless the articles of incorporation provide otherwise, a business combination of a resident domestic corporation with an interested stockholder if the resident domestic corporation did not have a class of voting stock registered or traded on a national securities exchange or registered under section 12 (g) of the exchange act on the interested stockholder's stock acquisition date.
180.1143(2)
(2) Unless the articles of incorporation provide otherwise, a business combination with an interested stockholder who was an interested stockholder immediately before September 10, 1987, unless subsequently the interested stockholder increased its beneficial ownership of the voting power of the outstanding voting stock of the resident domestic corporation to a proportion in excess of the proportion of voting power that the interested stockholder beneficially owned immediately before September 10, 1987, excluding an increase approved by the board of directors of the resident domestic corporation before the increase occurred.
180.1143(3)
(3) A business combination of a resident domestic corporation with an interested stockholder which became an interested stockholder inadvertently, if the interested stockholder satisfies all of the following:
180.1143(3)(a)
(a) As soon as practicable divests itself of a sufficient amount of the voting stock of the resident domestic corporation so that the interested stockholder is no longer the beneficial owner of at least 10% of the voting power of the outstanding voting stock of the resident domestic corporation, or a subsidiary of that resident domestic corporation.
180.1143(3)(b)
(b) Would not at any time within the 3 years before the announcement date with respect to the business combination in question have been an interested stockholder except for the inadvertent acquisition.
180.1143(4)
(4) A business combination of a resident domestic corporation with an interested stockholder which was an interested stockholder immediately before September 10, 1987, and inadvertently increased its beneficial ownership of the voting power of the outstanding voting stock of the resident domestic corporation to a proportion in excess of the proportion of voting power that the interested stockholder beneficially owned immediately before September 10, 1987, if the interested stockholder divests itself of a sufficient amount of voting stock so that the interested stockholder is no longer the beneficial owner of a proportion of the voting power in excess of the proportion of voting power that the interested stockholder held immediately before September 10, 1987.
180.1143 History
History: 1989 a. 303;
1991 a. 39.
180.1144
180.1144
Relationship to other laws. 180.1144(1)
(1) The requirements of
ss. 180.1140 to
180.1144 are in addition to the requirements of other applicable law, including the other provisions of this chapter, and any additional requirements contained in the articles of incorporation or bylaws of a resident domestic corporation with respect to business combinations.
180.1144(2)
(2) For purposes of applying
ss. 180.1140 to
180.1144, if any other provision of this chapter is inconsistent with, in conflict with or contrary to
ss. 180.1140 to
180.1144, that provision does not apply to the extent that it is inconsistent with, in conflict with or contrary to
ss. 180.1140 to
180.1144.
180.1144 History
History: 1989 a. 303;
1991 a. 39.
