2005 Wisconsin Act 441

193.905 Voluntary dissolution; winding up. (1) Notice of dissolution. To initiate a voluntary dissolution the board shall file with the department a notice of intent to dissolve. The board may not file a notice under this subsection unless the notice is approved by affirmative vote of the members.

(1m) Collection and payment of debts. After a notice is filed under sub. (1), the board shall proceed as soon as possible to collect, or make provision for the collection of, all unpaid subscriptions for shares and all other debts owing to the cooperative and pay, or make provision for the payment of, all debts, obligations, and liabilities of the cooperative according to the priority accorded to the debts, obligation, and liabilities, by law.

(2) Transfer of assets. After a notice is filed under sub. (1), the board may lease or dispose of all or substantially all of the property and assets of the cooperative without a vote of the members.

(3) Distribution to members and former members. Any property of the cooperative remaining after discharge of the cooperative's debts, obligations, and liabilities may be distributed to the members and former members as provided in the bylaws.

(4) Unclaimed assets. (a) If the articles or bylaws so provide, assets distributable in the course of the dissolution of a cooperative that remain unclaimed as provided in this paragraph may be forfeited to the cooperative in the manner set forth in s. 185.03 (10), except that the board, a committee designated by the board to liquidate the cooperative's assets, or a court, trustee, or other person authorized to liquidate the assets of the cooperative may declare the funds forfeited, give the notice, determine the purpose or purposes, and dedicate the funds as provided under s. 185.03 (10) and except that any of these persons may declare the funds forfeited no earlier than 2 years and no later than 5 years after the funds are first made available to their owners in the course of the liquidation of the cooperative.

(b) Assets distributable in the course of the dissolution of a cooperative that are not forfeited under par. (a) shall be reported and delivered to the state treasurer as provided under ch. 177.

(5) Articles of dissolution. After payment of all debts, obligations, and liabilities of the cooperative has been made or provided for as required under sub. (1m) and the remaining property of the cooperative has been distributed as provided under sub. (3) or otherwise disposed of under sub. (4), the board shall file with the department articles of dissolution. The articles of dissolution shall state all of the following, as applicable:

(a) That all debts, obligations, and liabilities of the cooperative have been paid or adequate provisions have been made for their payment or time periods during which claims may be made against the cooperative have expired and no other claims are outstanding.

(b) That the remaining assets of the cooperative have been distributed to the members, pursuant to a liquidation authorized by the members, or as provided under sub. (4).

(c) That legal, administrative, or arbitration proceedings by or against the cooperative are not pending or adequate provision has been made for the satisfaction of a judgment, order, or decree that may be entered against the cooperative in such a pending proceeding.

(6) Effective date. A cooperative is dissolved upon the filing of the articles of dissolution as required under sub. (5).

(7) Certificate. Upon accepting articles of dissolution for filing, the department shall issue to the dissolved cooperative or its legal representative a certificate of dissolution that contains all of the following:

(a) The name of the dissolved cooperative.

(b) The date the articles of dissolution were filed with the department.

(c) A statement that the cooperative is dissolved.

193.911 Revocation of dissolution proceedings. (1) Authority to revoke. Dissolution proceedings under s. 193.905 may be revoked before the articles of dissolution are filed with the department as required under s. 193.905 (5).

(2) Revocation by members. The chairperson may call a members' meeting to submit to the members the question of revoking dissolution proceedings under s. 193.905. The dissolution proceedings are revoked if the proposed revocation is approved at the members' meeting by a majority of the votes cast or, for a cooperative with articles or bylaws requiring more than majority approval or other conditions for approval, by a sufficient vote as required under the articles or bylaws or by satisfying the other conditions for approval.

(3) Filing with the department. The chairperson of the board or the records officer shall file with the department a notice of revocation promptly after the revocation is approved as provided under sub. (2). The revocation is effective upon filing of the notice under this subsection.

193.925 Court-supervised voluntary dissolution. After a notice of intent to dissolve is filed as required under s. 193.905 (1) and before a certificate of dissolution is issued under s. 193.905 (7), the cooperative or, for good cause shown, a member or creditor of the cooperative may petition the circuit court for the county where the registered address of the cooperative is located to have the dissolution conducted under the supervision of the court. Section 193.905 does not apply to a dissolution conducted under the supervision of the court under this section. Section 193.911 applies to a dissolution conducted under the supervision of the court under this section. The court may grant equitable relief that it deems appropriate in a dissolution conducted under its supervision under this section, if the supervision resulted from an application by the cooperative.

193.931 Involuntary dissolution. (1) Causes of action. (a) A member may bring an action against a cooperative for dissolution, liquidation, and equitable relief if any of the following apply:

1. The directors or the persons having the authority otherwise vested in the board are deadlocked in the management of the cooperative's affairs and the members are unable to break the deadlock.

2. The directors or those in control of the cooperative have acted fraudulently, illegally, or in a manner unfairly prejudicial toward one or more members in their capacities as members, directors, or officers.

3. For a period that includes the time when 2 consecutive regular members' meetings were held, the members failed to elect successors to directors whose terms expired or would have expired upon the election and qualification of their successors.

4. The cooperative's assets are being misapplied or wasted.

5. The cooperative's period of duration as provided in the articles has expired and has not been lawfully extended.

(b) A creditor may bring an action against a cooperative for dissolution, liquidation, and equitable relief if any of the following apply:

1. The creditor has obtained a money judgment against the cooperative and an execution on that judgment has been returned unsatisfied.

2. The cooperative has admitted in writing that a claim of the creditor against the cooperative is due and owing and that the cooperative is unable to pay its debts in the ordinary course of business.

(c) Except as provided in sub. (1m), the attorney general may bring an action against a cooperative for dissolution and liquidation, and for equitable relief for persons other than the attorney general, if any of the following apply:

1. The articles and certificate of organization of the cooperative were procured through fraud.

2. The cooperative was organized for a purpose prohibited by state law or not permitted by this chapter.

3. The cooperative has knowingly, with intentional disregard of the harm that the provision is intended to avert, violated a provision of this chapter, has violated a provision of this chapter more than once, or has violated more than one provision of this chapter.

4. The actions of the cooperative, or its failure to act, constitutes surrender or abandonment of the business of the cooperative.

(1m) Notice to cooperative by attorney general. The attorney general may not commence an action under sub. (1) (c) until 30 days after giving notice to the cooperative of the reason for the action. If the reason for the action is an act that the cooperative has done or failed to do and the act or omission may be corrected by amending the articles or bylaws or by performing or abstaining from the act, the attorney general shall give the cooperative 30 additional days to make the correction before filing the action. If the cooperative makes the correction before the expiration of the 30 additional days, the attorney general may not bring an action under sub. (1) (c) based upon that act or omission.

(2) Financial condition of cooperative. In determining whether to order a remedy in an action under sub. (1), the court shall consider the financial condition of the cooperative. The court may not refuse to order a remedy solely on the ground that the cooperative has accumulated operating profits or current operating profits.

(3) Alternative remedies. In deciding whether to order dissolution in an action under sub. (1), the court shall consider whether other relief suggested by one or more parties would permanently remedy the cause of the action and, if so, may order such other relief.

(4) Expenses. If the court finds that a party to an action under sub. (1) has acted arbitrarily, vexatiously, or in bad faith, the court may award reasonable expenses, including attorney fees and disbursements, to any of the other parties.

(5) Venue. An action under sub. (1) shall be brought in the circuit court for the county where the registered address of the cooperative is located.

(6) Parties. It is not necessary to make members parties to an action under sub. (1).

193.935 Procedure in involuntary or court-supervised voluntary dissolution. (1) Action before hearing. In a dissolution conducted under the supervision of a court under s. 193.925 or in any action under s. 193.931 (1) the court may take any of the following actions before an initial hearing is completed:

(a) Issue injunctions.

(b) Appoint receivers temporarily, until the conclusion of a hearing under sub. (2), with all powers and duties that the court directs.

(c) Take actions required to preserve the cooperative's assets wherever located.

(d) Carry on the business of the cooperative.

(2) Appointment of receiver. In a dissolution conducted under the supervision of a court under s. 193.925 or in any action under s. 193.931 (1) the court may appoint a receiver after a hearing is completed, following notice to the parties as directed by the court. The receiver shall collect the cooperative's assets and amounts owing to the cooperative by subscribers on account of an unpaid portion of the consideration for the issuance of shares. Subject to the order of the court, the receiver may continue the business of the cooperative and lease or dispose of the property and assets of the cooperative at public or private sale.

(3) Distribution of assets. In a dissolution conducted under the supervision of a court under s. 193.925 or in any action under s. 193.931 (1), the court shall apply the assets of the cooperative and the proceeds resulting from the lease or disposition of the cooperative's property by following all of the following steps, in alphanumerical order:

(a) Applying the assets and proceeds to cover attorney fees and disbursements made in connection with the proceedings and the other costs and expenses of the proceedings.

(b) Applying the assets and proceeds to cover debts, taxes, and assessments owing to the United States, this state, and other states, in that order.

(c) Applying the assets and proceeds to cover worker's compensation claims for which the cooperative is liable under ch. 102, except that this paragraph does not apply to a claim if, at the time of injury, as defined in s. 102.01 (2) (g), the cooperative had in force a policy of worker's compensation insurance as required under s. 102.28 (2) (a).

(d) Applying the assets and proceeds to cover claims of employees for services performed within 3 months preceding the appointment of the receiver, if any.

(e) Applying the assets and proceeds to cover other claims proved and allowed.

(f) Distributing the assets and proceeds to the members or pursuant to a liquidation plan approved by the members.

193.941 Receiver qualifications and powers. (1) Qualifications. A receiver appointed under s. 193.935 (1) or (2) shall be an individual, a domestic business entity, or a foreign business entity authorized to transact business in this state and shall give a bond as directed by the court with the sureties required by the court.

(2) Powers. A receiver may bring and defend suits.

193.951 Filing claims in involuntary or court-supervised voluntary dissolution proceedings. (1) Filing under oath. In a dissolution conducted under the supervision of a court under s. 193.925 or in any action under s. 193.931 (1), the court may require all creditors and claimants of the cooperative to file their claims, under oath and in a form prescribed by the court, with the court or with a receiver appointed under s. 193.935 (1) or (2).

(2) Date to file a claim; notice. If the court requires the filing of claims in a dissolution conducted under the supervision of a court under s. 193.925 or in any action under s. 193.931 (1), the court shall do all of the following:

(a) Set a date at least 120 days after the date the order is filed, as the last day for the filing of claims.

(b) Prescribe a notice of the fixed date that shall be given to creditors and claimants.

(3) Claims barred; extension of time for filing. The court may prohibit any person who fails to file a claim before the date established under sub. (2) (a) from claiming an interest in or receiving payment out of the property and assets of the cooperative. At any time before the date established under sub. (2) (a), the court may extend the time for filing claims beyond the date established under sub. (2) (a).

193.955 Discontinuance of court-supervised dissolution proceedings. A dissolution conducted under the supervision of a court under s. 193.925 or any action under s. 193.931 (1) may be discontinued at any time during the dissolution proceedings if it is established that cause for dissolution does not exist. The court shall dismiss the proceedings and direct the receiver appointed under s. 193.935 (1) or (2), if any, to deliver to the cooperative its remaining property and assets.

193.961 Order of dissolution. (1) Issuance; effective date. After distribution of a cooperative's assets and proceeds under s. 193.935 (3), the court shall issue an order dissolving the cooperative. The dissolution is effective upon issuance of the order.

(2) Filing. After the court issues an order under sub. (1), the court shall file a certified copy of the order with the department. The department may not charge a fee for filing the order.

193.971 Barring of claims. (1) Claims barred. Except as provided in s. 193.951 (3), a creditor or claimant who does not file a claim or bring an action during the pendency of the dissolution proceedings or has not brought an action before the commencement of the dissolution proceedings, and all those claiming through or under the creditor or claimant, are forever barred from bringing an action to collect on that claim or otherwise enforcing it, except as provided in this section.

(2) Certain claims allowed for good cause. Except as provided in s. 193.951 (3), within one year after the date on which the articles of dissolution are filed under s. 193.905 (5) or an order of dissolution is issued under s. 193.961, a creditor or claimant who shows good cause for not having previously filed the claim may apply to the circuit court to allow a claim against the cooperative's undistributed assets or, if the undistributed assets are not sufficient to satisfy the claim, against a person to the extent of the distributions received by that person in the dissolution by virtue of that person's status as a member.

(3) Certain omitted claims allowed. A person to whom is owed a debt, obligation, or liability incurred during an action under s. 193.931 (1), but who is not paid before the distribution of assets and proceeds under s. 193.935 (3) (f), may bring an action to recover on the claim against the officers, directors, or members of the cooperative before the expiration of the applicable statute of limitations.

441,79 Section 79. 196.01 (10) of the statutes is amended to read:

196.01 (10) "Telecommunications utility" means any person, corporation, company, cooperative, unincorporated cooperative association, partnership, association and lessees, trustees or receivers appointed by any court that owns, operates, manages or controls any plant or equipment used to furnish telecommunications services within the state directly or indirectly to the public. "Telecommunications utility" does not include a telecommunications carrier.

441,80 Section 80. 196.02 (2) of the statutes is amended to read:

196.02 (2) Definition; classification. In this subsection, "public utility" does not include a telecommunications cooperative, an unincorporated telecommunications cooperative association, or a small telecommunications utility except as provided under s. 196.205 or 196.215 (2) and does not include an alternative telecommunications utility. The commission shall provide for a comprehensive classification of service for each public utility. The classification may take into account the quantity used, the time when used, the purpose for which used, and any other reasonable consideration. Each public utility shall conform its schedules of rates, tolls and charges to such classification.

441,81 Section 81. 196.09 (1) of the statutes is amended to read:

196.09 (1) In this section, "public utility" does not include a telecommunications cooperative or an unincorporated telecommunications cooperative association except as provided under s. 196.205. In subs. (2) to (7), "public utility" does not include a telecommunications utility. Subsection (9) only applies to a telecommunications utility. Every public utility shall file with the commission, within such time as may be required by the commission, its estimate of the annual rate of depreciation required for each of its classes of fixed capital used for public utility purposes, and of the composite annual rate of depreciation required for such fixed capital as an aggregate, which shall constitute the public utility's estimates of the amount which should be returned to it out of its rates for service, to meet the depreciation of its property.

441,82 Section 82. 196.11 (2) of the statutes is amended to read:

196.11 (2) Any arrangement under this section shall be under the supervision and regulation of the commission. The commission may order any rate, charge or regulation which the commission deems necessary to give effect to the arrangement. The commission may make any change in a rate, charge or regulation as the commission determines is necessary and reasonable and may revoke its approval and amend or rescind all orders relative to any arrangement. This subsection does not apply to telecommunications cooperatives, unincorporated telecommunications cooperative associations, or telecommunications utilities.

441,83 Section 83. 196.20 (3) of the statutes is amended to read:

196.20 (3) Except as provided in subs. (1m) and (5) (a), this section does not apply to telecommunications cooperatives, unincorporated telecommunications cooperative associations, or small telecommunications utilities unless made subject to this section under s. 196.205 or 196.215 (2).

441,84 Section 84. 196.205 (1m) of the statutes is amended to read:

196.205 (1m) A telecommunications cooperative or an unincorporated telecommunications cooperative association may elect to be subject to ss. 196.28 and 196.37 as they apply to any rate, toll or charge and to ss. 196.02 (2), 196.09 (1), 196.11 (2), 196.20 and 196.26 in any of the following ways:

(a) By amendment of the articles of incorporation of the cooperative under s. 185.51 or the articles of organization of the association under s. 193.221.

(c) By a majority of the voting members of the board of directors of the cooperative or association.

441,85 Section 85. 196.205 (2) of the statutes is amended to read:

196.205 (2) Notwithstanding sub. (1m), a telecommunications cooperative or an unincorporated telecommunications cooperative association shall be subject to s. 196.26 if it is a party in a proceeding on a complaint specified in s. 196.26 (1) (b) or (c).

441,86 Section 86. 196.26 (4) (a) of the statutes is amended to read:

196.26 (4) (a) This section does not apply to any rate, toll, charge or schedule of any telecommunications cooperative or unincorporated telecommunications cooperative association, except as provided under s. 196.205 or unless at least 5% of the customers of the telecommunications cooperative or association file a complaint with the commission that the rate, toll, charge or schedule is in any respect unreasonable, insufficient or unjustly discriminatory.

441,87 Section 87. 196.28 (4) of the statutes is amended to read:

196.28 (4) This section does not apply to rates, tolls or charges of a telecommunications cooperative, an unincorporated telecommunications cooperative association, or a small telecommunications utility except as provided in s. 196.205 or 196.215 (2).

441,88 Section 88. 196.37 (4) of the statutes is amended to read:

196.37 (4) This section does not apply to rates, tolls or charges of a telecommunications cooperative, an unincorporated telecommunications cooperative association, or a small telecommunications utility except as provided in s. 196.205 or 196.215 (2).

441,89 Section 89. 196.50 (2) (b) of the statutes is amended to read:

196.50 (2) (b) A certificate, franchise, license or permit, indeterminate or otherwise, in effect on September 1, 1994, for a telecommunications utility shall remain in effect and shall have the effect of a certificate of authority. A telecommunications utility is not required to apply for a new certificate of authority to continue offering or providing service to the extent of the prior authorization. Each telecommunications utility, including telecommunications cooperatives and unincorporated telecommunications cooperative associations, shall have on file with the commission under s. 196.19 a tariff that sets forth the rates, terms and conditions for all services provided and a map that defines the geographical limits of the service territory that the telecommunications utility is obliged to serve.