AB327: Bill Text

AB327,144,10 (b) If a plan is adopted under par. (a), the chairperson, vice-chairperson, records officer, or documents officer of each association that is party to the merger or consolidation shall execute articles of merger or consolidation which state the plan and the fact that the plan was adopted. The business entity surviving the merger or consolidation shall file the articles of merger with the department. If the business entity surviving the merger or consolidation is organized under the laws of this state, the department shall issue a certificate of organization to the business entity.

AB327,145,4 193.805 Merger of subsidiary or parent. (1) When authorized; plan of merger. (a) Except as otherwise provided in this paragraph, a parent cooperative that owns at least 90 percent of the outstanding ownership interests of each class and series of a subsidiary business entity, other than ownership interests that, absent this section, would not be entitled to vote on a merger, may merge the subsidiary into the parent or the parent into the subsidiary without a vote of the members of the parent or the members of the subsidiary by complying with this section and the applicable law of the jurisdiction under whose laws the business entity surviving the merger will be organized. Except as otherwise provided in this paragraph, a parent cooperative that owns at least 90 percent of the outstanding ownership interests of each class and series of 2 or more subsidiary business entities, other than ownership interests that, absent this section, would not be entitled to vote on a merger, may merge the subsidiaries into one another without a vote of the members of the parent or the members of the subsidiaries by complying with this section and the applicable law of the jurisdiction under whose laws the business entity surviving the merger will be organized. This paragraph does not permit a cooperative to merge with a business entity organized under the laws of this state, other than an association, unless the law governing the business entity specifically authorizes merger with a cooperative.

AB327,145,6 (b) To initiate a merger under par. (a), the board shall prepare a written plan stating all of the following:

AB327,145,8 1. The name of each subsidiary that is party to the merger, the name of the parent, and the name of the business entity surviving the merger.

AB327,145,12 2. Except as provided in subd. 3., the manner and basis of converting membership or ownership interests in the parent and each subsidiary that is party to the merger, as applicable, into membership or ownership interests in the surviving business entity, money, or other property.

AB327,145,17 3. If the parent is party to the merger but is not the surviving business entity and if the surviving business entity is a cooperative, a provision for the pro rata issuance of membership interests of the surviving business entity to the holders of membership interests in the parent on surrender of any certificates for shares of the parent.

AB327,145,20 4. If the surviving business entity is a subsidiary cooperative, a statement of any amendments to the articles of the surviving business entity that will be part of the merger.

AB327,145,24 (c) If the parent is party to the merger but is not the surviving business entity, the plan under par. (b) shall be approved by the affirmative vote of the holders of a majority of the voting power of all membership interests of the parent entitled to vote at a regular or special meeting.

AB327,146,3 (2) Notice. No later than 10 days after the effective date of the merger, the board of the parent shall give notice of the merger, including a copy of the plan of merger, to each member of each subsidiary that is party to the merger.

AB327,146,6 (3) Articles of merger. The board of the parent shall file with the department articles of merger, signed by the chairperson or his or her designee, containing all of the following:

AB327,146,7 (a) The plan of merger.

AB327,146,11 (b) The number of outstanding membership interests of each class and series of each subsidiary that is party to the merger, other than the classes or series that, absent this section, would not be entitled to vote on a merger, and the number of such membership interests owned by the parent.

AB327,146,13 (c) A statement that the plan of merger has been approved by the parent under this section.

AB327,146,16 (5) Certificate. If the business entity surviving the merger is organized under the laws of this state, the department shall issue a certificate of organization to the business entity upon receipt of the articles of merger.

AB327,146,20 (6) Rights of dissenting owners. If, immediately prior to a merger under this section, a business entity that is party to the merger is owned, at least in part, by persons other than the parent or an affiliate of the parent, those persons have dissenters' rights under the law governing that business entity's organization.

AB327,146,22 (7) Nonexclusivity. Mergers authorized under sub. (1) (a) may instead be accomplished under s. 193.801, in which case this section does not apply.

AB327,147,2 193.807 Effective date; effect of merger or consolidation. (1) Effective date. Unless a later date is provided in the plan of merger or consolidation or is required under other applicable law, a merger or consolidation is effective when the articles of merger or consolidation are filed with the department.

AB327,147,4 (2) Effect of merger or consolidation. All of the following occur when a merger or consolidation takes effect:

AB327,147,9 (a) All business entities that are party to the merger or consolidation become the business entity surviving the merger or consolidation, as designated in the plan, and the separate existence of every business entity that is party to the merger or consolidation, except the business entity surviving the merger or consolidation, ceases.

AB327,147,12 (b) The title to all property owned by each business entity that is party to the merger or consolidation is vested in the surviving business entity without reversion or impairment.

AB327,147,19 (c) If, under the laws applicable to a business entity that is a party to the merger or consolidation, one or more of the owners thereof is liable for the debts and obligations of such business entity, such owner or owners shall continue to be liable for the debts and obligations of the business entity, but only for such debts and obligations accrued during the period or periods in which such laws are applicable to such owner or owners. This paragraph does not affect liability under any taxation laws.

AB327,148,4 (d) If, under the laws applicable to the surviving business entity, one or more of the owners thereof is liable for the debts and obligations of such business entity, the owner or owners of a business entity that is party to the merger, other than the surviving business entity, who become subject to such laws shall be liable for the debts and obligations of the surviving business entity to the extent provided in such laws, but only for such debts and obligations accrued after the merger or consolidation. The owner or owners of the surviving business entity prior to the merger shall continue to be liable for the debts and obligations of the surviving business entity to the extent provided in par. (c). This paragraph does not affect liability under any taxation laws.

AB327,148,6 (e) The surviving business entity has all liabilities of each business entity that is party to the merger or consolidation.

AB327,148,11 (f) A civil, criminal, administrative, or investigatory proceeding pending by or against any business entity that is a party to the merger or consolidation may be continued as if the merger or consolidation did not occur, or the surviving business entity may be substituted in the proceeding for the business entity whose existence ceased.

AB327,148,13 (g) The articles or other similar governing document of the surviving business entity shall be amended to the extent provided in the plan.

AB327,148,19 (h) The interests of each business entity that is party to the merger that are to be converted into shares, interests, obligations, or other securities of the surviving business entity or any other business entity or into cash or other property are converted, and the former holders of the interests are entitled only to the rights provided in the articles of merger or consolidation to their dissenters' rights under the laws applicable to each business entity that is party to the merger.

AB327,148,21 193.835 Abandonment of merger. (1) Authority and procedure. A merger may be abandoned before it takes effect by any of the following means:

AB327,149,5 (b) An abandonment may be approved at a meeting by the affirmative vote of the holders of a majority of the voting power of the membership interests of each cooperative that is party to the merger who are entitled to vote on the approval of the plan of merger, except that the board of a cooperative that is party to the merger may approve the abandonment if no members of that cooperative are entitled to vote. In addition to the other requirements of this paragraph, if a business entity other than a cooperative is party to the merger, an abandonment may only be approved by taking any actions to approve the abandonment that are required by the laws under which the business entity is organized.

AB327,149,6 (c) An abandonment may be approved as provided in the plan of merger.

AB327,149,13 (d) An abandonment may be approved by adoption, by the board of any cooperative that is party to the merger, of a resolution abandoning the merger, subject to the contract rights of any other person under the plan of merger. If a business entity other than a cooperative is party to the merger, an abandonment may be approved by a resolution of the governing body of the business entity adopted according to the laws under which the business entity is organized, subject to the contract rights of any other person under the plan of merger.

AB327,149,16 (2) Articles of abandonment. The board or other governing body of any business entity that approves an abandonment under sub. (1) shall file with the department articles of abandonment that contain all of the following:

AB327,149,17 (a) The names of the business entities that were party to the proposed merger.

AB327,149,19 (b) The provisions under sub. (1) under which the proposed merger is abandoned.

AB327,149,21 (c) If the proposed merger is abandoned under sub. (1) (d), the text of the resolution approving the abandonment.

AB327,149,22 subchapter IX

AB327,149,23 Dissolution

AB327,150,2 193.905 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.

AB327,150,8 (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.

AB327,150,11 (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.

AB327,150,15 (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.

AB327,150,25 (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.

AB327,151,3 (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.

AB327,151,9 (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:

AB327,151,13 (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.

AB327,151,16 (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).

AB327,151,20 (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.

AB327,151,22 (6) Effective date. A cooperative is dissolved upon the filing of the articles of dissolution as required under sub. (5).

AB327,151,25 (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:

AB327,152,1 (a) The name of the dissolved cooperative.

AB327,152,2 (b) The date the articles of dissolution were filed with the department.

AB327,152,3 (c) A statement that the cooperative is dissolved.

AB327,152,6 193.911 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).

AB327,152,13 (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.

AB327,152,17 (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.

AB327,153,3 193.925 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.

AB327,153,6 193.931 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:

AB327,153,9 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.

AB327,153,12 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.

AB327,153,15 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.

AB327,153,16 4. The cooperative's assets are being misapplied or wasted.

AB327,153,18 5. The cooperative's period of duration as provided in the articles has expired and has not been lawfully extended.

AB327,153,20 (b) A creditor may bring an action against a cooperative for dissolution, liquidation, and equitable relief if any of the following apply:

AB327,153,22 1. The creditor has obtained a money judgment against the cooperative and an execution on that judgment has been returned unsatisfied.

AB327,153,25 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.

AB327,154,3 (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:

AB327,154,5 1. The articles and certificate of organization of the cooperative were procured through fraud.

AB327,154,7 2. The cooperative was organized for a purpose prohibited by state law or not permitted by this chapter.

AB327,154,11 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.

AB327,154,13 4. The actions of the cooperative, or its failure to act, constitutes surrender or abandonment of the business of the cooperative.

AB327,154,22 (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.

AB327,155,2 (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.

AB327,155,6 (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.

AB327,155,9 (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.

AB327,155,11 (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.

AB327,155,13 (6) Parties. It is not necessary to make members parties to an action under sub. (1).

AB327,155,17 193.935 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:

AB327,155,18 (a) Issue injunctions.

AB327,155,20 (b) Appoint receivers temporarily, until the conclusion of a hearing under sub. (2), with all powers and duties that the court directs.

AB327,155,21 (c) Take actions required to preserve the cooperative's assets wherever located.

AB327,155,22 (d) Carry on the business of the cooperative.

AB327,156,5 (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.

AB327,156,10 (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:

AB327,156,13 (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.

AB327,156,15 (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.

AB327,156,20 (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).

AB327,156,22 (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.

AB327,156,23 (e) Applying the assets and proceeds to cover other claims proved and allowed.

AB327,156,25 (f) Distributing the assets and proceeds to the members or pursuant to a liquidation plan approved by the members.

AB327,157,5 193.941 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.