Amendment SSA1-SB619

SB619-SSA1,14,23 180.11045 Merger of indirect wholly owned subsidiary or parent. (1) Definitions. In this section:

SB619-SSA1,15,2 (a) "Holding company" means a corporation that issues shares under sub. (2) (b) and that, during the period beginning with its incorporation and ending with the effective time of a merger under this section, was at all times a wholly owned subsidiary of the parent corporation that is party to the merger.

SB619-SSA1,15,3 (b) "Indirect wholly owned subsidiary" means any of the following:

SB619-SSA1,15,6 1. A corporation, all of the outstanding shares of each class of which are, prior to the effective time of a merger under this section, owned by a parent corporation indirectly through one or more business entities.

SB619-SSA1,15,10 2. A limited liability company organized under ch. 183, all of the outstanding interests of each class of which are, prior to the effective time of a merger under this section, owned by a parent corporation indirectly through one or more business entities.

SB619-SSA1,15,14 (c) "Organizational documents" means, when used in reference to a corporation, the corporation's articles of incorporation and bylaws and, when used in reference to a limited liability company, the limited liability company's operating agreement.

SB619-SSA1,15,17 (d) "Parent corporation" means a corporation owning, prior to the effective time of a merger under this section, all of the outstanding shares of each class of another corporation or all of the outstanding interests of each class of another business entity.

SB619-SSA1,15,19 (e) "Surviving entity" means the limited liability company or corporation, other than the holding company, surviving a merger under sub. (2).

SB619-SSA1,15,20 (f) "Wholly owned subsidiary" means any of the following:

SB619-SSA1,15,22 1. A corporation, all of the outstanding shares of each class of which are owned by a corporation indirectly through one or more business entities or directly.

SB619-SSA1,15,25 2. A limited liability company organized under ch. 183, all of the outstanding interests of each class of which are owned by a corporation indirectly through one or more business entities or directly.

SB619-SSA1,16,7 (2) Merger authorized. Unless the articles of incorporation of the parent corporation specifically provide otherwise, or the parent corporation is a statutory close corporation under ss. 180.1801 to 180.1837, a parent corporation may merge with or into one of its indirect wholly owned subsidiaries pursuant to s. 180.1101 without approval of the shareholders of the parent corporation or the shareholders or members of the indirect wholly owned subsidiary if all of the following conditions are satisfied:

SB619-SSA1,16,9 (a) The parent corporation and the indirect wholly owned subsidiary are the only parties to the merger.

SB619-SSA1,16,16 (b) Each share or other interest of the parent corporation outstanding immediately prior to the effective time of the merger is converted in the merger into a share or equal interest of a corporation that was a wholly owned subsidiary of the parent corporation immediately prior to the effective time of the merger having the same designation, preferences, limitations, and relative rights as the share or other interest of the parent corporation outstanding immediately prior to the effective time of the merger.

SB619-SSA1,17,6 (c) Except as otherwise provided in this paragraph, immediately following the effective time of the merger, the organizational documents of the holding company issuing shares in the merger pursuant to sub. (2) (b) contain provisions identical to the organizational documents of the parent corporation immediately prior to the effective time of the merger. This requirement does not apply to provisions regarding the incorporator or incorporators, the corporate name, the registered office and agent, and provisions that are subject to amendment under s. 180.1002. To the extent that the 2nd sentence of s. 180.0852 applied to the parent corporation immediately prior to the effective time of the merger, the organizational documents of the holding company immediately following the effective time of the merger shall contain provisions implementing that sentence. If s. 180.1706 (2) and (3) applies to the parent corporation, pursuant to s. 180.1706 (1), immediately prior to the effective time of the merger, the articles of incorporation of the holding company immediately following the effective time of the merger shall contain provisions implementing s. 180.1706 (2) and (3).

SB619-SSA1,17,8 (d) Immediately following the effective time of the merger, the surviving entity is a wholly owned subsidiary of the holding company.

SB619-SSA1,17,11 (e) The directors of the parent corporation immediately prior to the effective time of the merger are the directors of the holding company immediately following the effective time of the merger.

SB619-SSA1,18,14 (f) Except as otherwise provided in this paragraph, the organizational documents of the surviving entity immediately following the effective time of the merger contain provisions identical to the organizational documents of the parent corporation immediately prior to the effective time of the merger. With respect to a surviving entity that is a corporation, this requirement does not apply to provisions regarding the incorporator or incorporators; the corporate name; the registered office and agent; or provisions that are subject to amendment under s. 180.1002 or any other law permitting amendment of the articles of incorporation without approval of the shareholders. With respect to a surviving entity that is a limited liability company, this requirement does not apply to provisions regarding the organizer or organizers; the entity name; the registered office and agent; references to members rather than shareholders; references to interests, units, or similar terms rather than shares; references to managers rather than directors; or provisions that are subject to amendment under any law permitting amendment of the operating agreement without approval of the members. The organizational documents of the surviving entity immediately following the effective time of the merger may specify a reduced number of classes and shares or other interests that the surviving entity is authorized to issue. To the extent that the 2nd sentence of s. 180.0852 applied to the parent corporation immediately prior to the effective time of the merger, the organizational documents of the surviving entity immediately following the effective time of the merger shall contain provisions implementing that sentence. If s. 180.1706 (2) and (3) applies to the parent corporation, pursuant to s. 180.1706 (1), immediately prior to the effective time of the merger, the organizational documents of the surviving entity immediately following the effective time of the merger shall contain provisions implementing s. 180.1706 (2) and (3). The organizational documents of the surviving entity immediately following the effective time of the merger shall contain provisions that specifically refer to this paragraph and that require all of the following:

SB619-SSA1,18,22 1. Any act, other than the election or removal of directors or managers of the surviving entity, for which approval of the shareholders or members of the surviving entity is required under this chapter, ch. 183, or the surviving entity's organizational documents may be accomplished only with the additional approval of the shareholders of the holding company or any successor to the holding company, by the same vote as is required for approval of the shareholders or members of the surviving entity under this chapter, ch. 183, or the surviving entity's organizational documents.

SB619-SSA1,19,4 2. If the surviving entity is a limited liability company, any act, other than the election or removal of managers of the surviving entity, for which approval of the shareholders of the surviving entity would be required under this chapter if the surviving entity were a corporation may be accomplished only with the additional approval of the shareholders of the holding company or any successor to the holding company, by the same vote as would be required for approval of the shareholders under this chapter if the surviving entity were a corporation.

SB619-SSA1,19,12 3. If the surviving entity is a limited liability company, any amendment of the organizational documents of the surviving entity that would be required under this chapter to be included in the articles of incorporation of the surviving entity if the surviving entity were a corporation, other than an amendment specified in s. 180.1002, may be accomplished only with the additional approval of the shareholders of the holding company or any successor to the holding company, by the same vote as would be required for approval of the shareholders under this chapter if the surviving entity were a corporation.

SB619-SSA1,19,18 4. If the surviving entity is a limited liability company, the affairs of the surviving entity are managed by or under the direction of a group of managers consisting of individuals who have the same fiduciary duties toward the surviving entity and its members as the directors of a corporation have toward the corporation and its shareholders and who are liable for breach of their duties to the same extent as directors of a corporation.

SB619-SSA1,19,21 (g) In the opinion of the board of directors of the parent corporation, the shareholders of the parent corporation do not have a gain or loss under the Internal Revenue Code as a result of the merger.

SB619-SSA1,19,24 (3) Articles of merger. The surviving entity shall include in the articles of merger under s. 180.1105 a statement that the merger was approved in accordance with this section and that the requirements of sub. (2) have been satisfied.

SB619-SSA1,20,2 (4) Effect of merger. All of the following occur when a merger under sub. (2) takes effect:

SB619-SSA1,20,12 (a) To the extent that the restrictions of s. 180.1131, 180.1141, or 180.1150 applied to the parent corporation and its shareholders immediately prior to the effective time of the merger, the restrictions apply to the holding company and its shareholders immediately following the effective time of the merger to the same extent as if the holding company were the parent corporation as the corporation existed immediately prior to the effective time of the merger. For purposes of ss. 180.1130, 180.1132, 180.1141, 180.1142, 180.1143, and 180.1150, the shares of the holding company acquired in the merger are deemed to have been acquired at the time and for the price and form of consideration that the shares of the parent corporation that were converted in the merger were acquired.

SB619-SSA1,20,16 (b) If immediately prior to the effective time of the merger s. 180.1141, 180.1142, or 180.1150 did not apply to a shareholder of the parent corporation, the section does not apply to the shareholder as a shareholder of the holding company solely by reason of the merger.

SB619-SSA1,20,22 (c) If the corporate name of the holding company immediately following the effective time of the merger is the same as the corporate name of the parent corporation immediately prior to the effective time of the merger, the shares of the holding company into which the shares of the parent corporation are converted in the merger are represented by the certificates that previously represented shares of the parent corporation.

SB619-SSA1,21,2 (d) A shareholder of the parent corporation immediately prior to the effective time of the merger retains any right that the shareholder had immediately prior to the effective time of the merger to institute or maintain a derivative proceeding in the right of the parent corporation.

SB619-SSA1,21,7 (e) No act of the surviving entity that requires the additional approval of the shareholders of the holding company or any successor company pursuant to sub. (2) (f) shall give rise to dissenters' rights under ss. 180.1301 to 180.1331 for the shareholders or the beneficial shareholders of the holding company or any successor to the holding company.

SB619-SSA1,21,19 (f) To the extent that shares of the parent corporation immediately prior to the effective time of the merger constituted shares of a preexisting class, the shares of the holding company immediately following the effective time of the merger constitute shares of a preexisting class to the same extent as if the holding company were the parent corporation as the parent corporation existed immediately prior to the effective time of the merger. Shares or interests of the surviving entity do not constitute shares of a preexisting class for purposes of s. 180.1705. For purposes of s. 180.1707, to the extent that shares of the parent corporation immediately prior to the effective time of the merger constituted shares of a preexisting class, the shares or interests of the surviving entity constitute shares of a preexisting class to the same extent as if the surviving entity were the parent corporation as the parent corporation existed immediately prior to the effective time of the merger.

SB619-SSA1,22,11 (g) To the extent that the provisions of s. 180.1706 (4) applied to the parent corporation immediately prior to the effective time of the merger, the provisions apply to the holding company immediately following the effective time of the merger to the same extent as if the holding company were the parent corporation as the corporation existed immediately prior to the effective time of the merger. To the extent that the provisions of s. 180.1706 (4) applied to the parent corporation immediately prior to the effective time of the merger, if the surviving entity is a corporation, the provisions apply to the surviving entity immediately following the effective time of the merger to the same extent as if the surviving entity were the parent corporation as the corporation existed immediately prior to the effective time of the merger. To the extent that the provisions of s. 180.1706 (4) applied to the parent corporation immediately prior to the effective time of the merger, if the surviving entity is a limited liability company, the provisions apply to the corresponding provisions of the organizational documents of the surviving entity immediately following the effective time of the merger to the same extent as if the surviving entity were the parent corporation as the corporation existed immediately prior to the effective time of the merger.

SB619-SSA1,22,20 (h) To the extent that immediately prior to the effective time of the merger shareholders of the parent corporation had rights or were subject to obligations or restrictions of the types referred to in s. 180.0627 (2), 180.0630 (4), 180.0722 (2), 180.0730 (1), or 180.0731 (1), the rights, obligations, or restrictions apply to the shareholders of the holding company immediately following the effective time of the merger to the same extent as if the holding company were the parent corporation as the corporation existed immediately prior to the effective time of the merger, unless the agreement, waiver, proxy, or trust establishing the rights, obligations, or restrictions specifies otherwise.

SB619-SSA1, s. 26 Section 26. 180.1105 (1) (a) and (b) of the statutes are repealed.

SB619-SSA1, s. 27 Section 27. 180.1105 (1) (bm), (cm), (dm) and (e) to (h) of the statutes are created to read:

SB619-SSA1,22,25 180.1105 (1) (bm) The name and state of incorporation of each corporation that is a party to the merger or share exchange.

SB619-SSA1,23,3 (cm) A statement that a plan of merger or share exchange has been approved and adopted by each corporation that is a party to the merger or share exchange as required under s. 180.1103 or 180.1104, as applicable.

SB619-SSA1,23,4 (dm) The name of the surviving or acquiring corporation.

SB619-SSA1,23,9 (e) In the case of a merger, any amendments in the articles of incorporation of the surviving corporation that are intended by the parties to the merger to take effect upon the merger or, if there are no such amendments, a statement that the articles of incorporation of the surviving corporation or another corporation that is a party to the merger will be the articles of incorporation of the surviving corporation.

SB619-SSA1,23,11 (f) A statement that the executed plan of merger or share exchange is on file at the principal place of business of the surviving or acquiring corporation.

SB619-SSA1,23,16 (g) A statement that the surviving or acquiring corporation will provide a copy of the plan of merger or share exchange, upon request and without cost, to any shareholder of a corporation that was a party to the merger or share exchange or, upon payment to the surviving or acquiring corporation of an amount equal to the cost of producing the copy, to any other interested person.

SB619-SSA1,23,19 (h) In the case of a merger, a statement indicating whether a business entity that merged with or into the surviving entity in the merger has a fee simple ownership interest in any Wisconsin real estate.

SB619-SSA1, s. 28 Section 28. 180.1105 (1) (c) and (d) of the statutes are renumbered 180.1105 (1) (am) and (i).

SB619-SSA1, s. 29 Section 29. 180.1106 (1) (b) of the statutes is amended to read:

SB619-SSA1,24,5 180.1106 (1) (b) The title to all property owned by each business entity that is party to the merger is vested in the surviving business entity without reversion or impairment, provided that, if a merging business entity has an interest in real estate in Wisconsin on the date of the merger, the merging business entity shall transfer that interest to the business entity surviving the merger and shall execute any real estate transfer return required under s. 77.22. The business entity surviving the merger shall promptly record the instrument of conveyance under s. 59.43 in the office of the register of deeds for each county in which the real estate is located.

SB619-SSA1, s. 30 Section 30. 180.1130 (3) (a) (intro.) of the statutes is amended to read:

SB619-SSA1,24,12 180.1130 (3) (a) (intro.) Unless the merger or share exchange is subject to s. 180.1104 or s. 180.11045, does not alter the contract rights of the shares as set forth in the articles of incorporation or does not change or convert in whole or in part the outstanding shares of the resident domestic corporation, a merger or share exchange of the resident domestic corporation or a subsidiary of the resident domestic corporation with any of the following:

SB619-SSA1, s. 31 Section 31. 180.1130 (14) of the statutes is repealed and recreated to read:

SB619-SSA1,24,16 180.1130 (14) "Valuation date" means the time when the closing price of the stock is determined on the day before the first public announcement of the proposed business combination.

SB619-SSA1, s. 32 Section 32. 180.1140 (11) of the statutes is amended to read:

SB619-SSA1,24,20 180.1140 (11) "Stock acquisition date", with respect to any person, means the date that time when that person first becomes an interested stockholder of that resident domestic corporation.

SB619-SSA1, s. 33 Section 33. 180.1150 (2) of the statutes is amended to read:

SB619-SSA1,25,4 180.1150 (2) Unless otherwise provided in the articles of incorporation of a resident domestic corporation or otherwise specified by the board of directors of the resident domestic corporation in accordance with s. 180.0824 (3), and except as provided in sub. (3) or as restored under sub. (5), the voting power of shares of a resident domestic corporation held by any person, including shares issuable upon conversion of convertible securities or upon exercise of options or warrants, in excess of 20% of the voting power in the election of directors shall be limited to 10% of the full voting power of those shares.

SB619-SSA1, s. 34 Section 34. 180.1161 (4) (c) of the statutes is amended to read:

SB619-SSA1,25,14 180.1161 (4) (c) The business entity continues to be vested with title to all property owned by the business entity that was converted without reversion or impairment, provided that, if the converting business entity has an interest in real estate in Wisconsin on the date of the conversion, the converting business entity shall transfer that interest to the business entity surviving the conversion and shall execute any real estate transfer return required under s. 77.22. The business entity surviving the conversion shall promptly record the instrument of conveyance under s. 59.43 in the office of the register of deeds for each county in which the real estate is located.

SB619-SSA1, s. 35 Section 35. 180.1161 (5) (bm) of the statutes is created to read:

SB619-SSA1,25,17 180.1161 (5) (bm) A statement indicating whether the business entity that is to be converted has a fee simple ownership interest in any Wisconsin real estate.

SB619-SSA1, s. 36 Section 36. 180.1201 (title) of the statutes is amended to read:

SB619-SSA1,25,20 180.1201 (title) Sale of assets in regular course of business; mortgage of assets; transfer of assets to subsidiary.

SB619-SSA1, s. 37 Section 37. 180.1201 (1) (d) of the statutes is created to read:

SB619-SSA1,26,2 180.1201 (1) (d) Transfer any or all of its assets to one or more corporations or other entities, all of the shares or interests of which are owned by the corporation, unless the transfer is in connection with a plan or action involving the sale, exchange, or disposal of all or substantially all of the assets of the corporation and requires shareholder approval under s. 180.1202.

SB619-SSA1, s. 38 Section 38. 180.1201 (2) of the statutes is amended to read:

SB619-SSA1,26,5 180.1201 (2) Unless required by the articles of incorporation, approval by the shareholders of a transaction described permitted in sub. (1) is not required.

SB619-SSA1, s. 39 Section 39. 180.1302 (1) (a) 3. of the statutes is created to read:

SB619-SSA1,26,9 180.1302 (1) (a) 3. The issuer corporation is a parent that is merged with its subsidiary under s. 180.1104. This subdivision does not apply if all of the following are true:

SB619-SSA1,26,12 a. The articles of incorporation of the surviving corporation do not differ from the articles of incorporation of the parent before the merger, except for amendments specified in s. 180.1002 (1) to (9).

SB619-SSA1,26,16 b. Each shareholder of the parent whose shares were outstanding immediately before the effective time of the merger holds the same number of shares with identical designations, preferences, limitations, and relative rights, immediately after the merger.

SB619-SSA1,26,22 c. The number of voting shares, as defined in s. 180.1103 (5) (a) 2., outstanding immediately after the merger, plus the number of voting shares issuable as a result of the merger, either by the conversion of securities issued pursuant to the merger or the exercise of rights or warrants issued pursuant to the merger, do not exceed by more than 20 percent the total number of voting shares of the parent outstanding immediately before the merger.

SB619-SSA1,27,3 d. The number of participating shares, as defined in s. 180.1103 (5) (a) 1., outstanding immediately after the merger, plus the number of participating shares issuable as a result of the merger, either by the conversion of securities issued pursuant to the merger or the exercise of rights or warrants issued pursuant to the merger, do not exceed by more than 20 percent the total number of participating shares of the parent outstanding immediately before the merger.

SB619-SSA1, s. 40 Section 40. 180.1302 (4) of the statutes is amended to read:

SB619-SSA1,27,11 180.1302 (4) Except in a business combination or unless Unless the articles of incorporation provide otherwise, subs. (1) and (2) do not apply to the holders of shares of any class or series if the shares of the class or series are registered on a national securities exchange or quoted on the National Association of Securities Dealers, Inc., automated quotations system on the record date fixed to determine the shareholders entitled to notice of a shareholders meeting at which shareholders are to vote on the proposed corporate action.

SB619-SSA1, s. 41 Section 41. 181.0121 (1) (a) 4. of the statutes is amended to read:

SB619-SSA1,27,17 181.0121 (1) (a) 4. An application for a certificate of conversion under s. 181.1161 (5). The form prescribed under this subdivision shall indicate that if the business entity that is to be converted has a fee simple ownership interest in Wisconsin real estate, the entity is required to file a report with the department of revenue under s. 73.14.

SB619-SSA1, s. 42 Section 42. 181.0121 (2) of the statutes is amended to read:

SB619-SSA1,27,25 181.0121 (2) Permissive forms. The department may prescribe and furnish on request forms for other documents required or permitted to be filed by this chapter, but use of these forms is not mandatory. If the department prescribes a form for articles of merger under s. 181.1105, the form shall indicate that if a business entity that is acquired in the merger has a fee simple ownership interest in Wisconsin real estate, the business entity that survives the merger is required to file a report with the department of revenue under s. 73.14.

SB619-SSA1, s. 43 Section 43. 181.1105 (1m) of the statutes is created to read:

SB619-SSA1,28,5 181.1105 (1m) Statement as to property owned by nonsurviving entity. A statement indicating whether a business entity that merged with or into the surviving entity in the merger has a fee simple ownership interest in any Wisconsin real estate.

SB619-SSA1, s. 44 Section 44. 181.1106 (2) of the statutes is amended to read:

SB619-SSA1,28,16 181.1106 (2) Title to property. The title to all real estate and other property owned by each business entity that is a party to the merger is vested in the surviving business entity without reversion or impairment subject to any conditions to which the property was subject before the merger, provided that, if a merging business entity has an interest in real estate in Wisconsin on the date of the merger, the merging business entity shall transfer that interest to the business entity surviving the merger and shall execute any real estate transfer return required under s. 77.22. The business entity surviving the merger shall promptly record the instrument of conveyance under s. 59.43 in the office of the register of deeds for each county in which the real estate is located.

SB619-SSA1, s. 45 Section 45. 181.1161 (4) (c) of the statutes is amended to read:

SB619-SSA1,29,2 181.1161 (4) (c) The business entity continues to be vested with title to all property owned by the business entity that was converted without reversion or impairment, provided that, if the converting business entity has an interest in real estate in Wisconsin on the date of the conversion, the converting business entity shall transfer that interest to the business entity surviving the conversion and shall execute any real estate transfer return required under s. 77.22. The business entity surviving the conversion shall promptly record the instrument of conveyance under s. 59.43 in the office of the register of deeds for each county in which the real estate is located.

SB619-SSA1, s. 46 Section 46. 181.1161 (5) (bm) of the statutes is created to read:

SB619-SSA1,29,5 181.1161 (5) (bm) A statement indicating whether the business entity that is to be converted has a fee simple ownership interest in any Wisconsin real estate.

SB619-SSA1, s. 47 Section 47. 182.01 (title) of the statutes is amended to read:

SB619-SSA1,29,8 182.01 (title) Business formation records; other duties of department of financial institutions.

SB619-SSA1, s. 48 Section 48. 182.01 (7) of the statutes is created to read:

SB619-SSA1,29,16 182.01 (7) Reports to department of revenue; business combinations. The department of financial institutions shall quarterly deliver to the department of revenue, in a form specified by the department of revenue, a report identifying mergers and conversions of business entities for which articles of merger and certificates of conversion have been filed with the department of financial institutions indicating that an entity acquired in the merger or an entity converted in the conversion had a fee simple ownership interest in any Wisconsin real estate.

SB619-SSA1, s. 49 Section 49. 183.0109 (1) (a) 5. of the statutes is amended to read:

SB619-SSA1,29,22 183.0109 (1) (a) 5. An application for a certificate of conversion under s. 183.1207 (5). The form prescribed under this subdivision shall indicate that if the business entity that is to be converted has a fee simple ownership interest in Wisconsin real estate, the entity is required to file a report with the department of revenue under s. 73.14.