AB327: Bill Text

AB327,90,10 (b) Votes against the action at the meeting.

AB327,90,17 193.461 Director conflicts of interest. (1) Conflict voiding certain contracts and transactions. A contract or transaction between a cooperative and a director, as determined under sub. (2) (b) 1., or between a cooperative and a business entity of which at least one of the cooperative's directors is a governor, director, manager, officer, or legal representative, as determined under sub. (2) (b) 2., or in which at least one of the cooperative's directors has a material financial interest, as determined under sub. (2) (a), is void unless any of the following apply:

AB327,91,5 (a) The contract or transaction was fair and reasonable as to the cooperative at the time it was authorized or ratified by the cooperative; the material facts as to the contract or transaction and as to the director's interest are disclosed or known to the members before the contract or transaction is authorized or ratified by the cooperative; and the material facts as to the contract or transaction and as to the director's interest are fully disclosed or known to the board or a committee established under s. 193.445 or 193.451 (1), and the board or committee in good faith authorizes or ratifies the contract or transaction. The interested director may not be counted in determining the presence of a quorum at a meeting where the contract or transaction may be authorized or ratified and may not vote on the authorization or ratification. The person asserting the validity of the contract or transaction has the burden of establishing that the contract or transaction was fair and reasonable as to the cooperative at the time it was authorized or ratified by the cooperative.

AB327,91,8 (b) The contract or transaction is a distribution, or is a contract or transaction that is made available to all members or patron members as part of the cooperative's business.

AB327,91,10 (c) The contract or transaction results from a resolution fixing the compensation of a director or of another officer, employee, or agent of the cooperative.

AB327,91,15 (2) Material financial interest; transactions involving third parties. (a) For purposes of sub. (1), a director has a material financial interest in each organization in which that director, that director's spouse, parent, child, or sibling, the spouse of that director's child or sibling, or the sibling of that director's spouse has a material financial interest.

AB327,91,19 (b) 1. For purposes of sub. (1), a contract or transaction between a cooperative and a director or that director's spouse, parent, child, or sibling, the spouse of that director's child or sibling, or the sibling of that director's spouse, is considered to be a transaction between the cooperative and the director.

AB327,91,25 2. For purposes of sub. (1), a contract or transaction between a cooperative and a business entity of which a director or that director's spouse, parent, child, or sibling, the spouse of that director's child or sibling, or the sibling of that director's spouse, is a governor, director, manager, officer, or legal representative is considered to be a transaction between the cooperative and a business entity of which the director is a governor, director, manager, officer, or legal representative.

AB327,92,5 193.465 Limitation of director's liability in articles or bylaws. The articles or bylaws may eliminate or limit a director's personal liability to the cooperative or its members for monetary damages for violating s. 193.455 (1) (a), except that neither the articles nor the bylaws may eliminate or limit the liability of a director for any of the following:

AB327,92,6 (1) A breach of the director's duty of loyalty to the cooperative or its members.

AB327,92,8 (2) An act or omission not in good faith or that involves intentional misconduct or a knowing violation of law.

AB327,92,9 (3) A transaction from which the director derived an improper personal benefit.

AB327,92,11 (4) An act or omission occurring before the date on which the provision in the articles or bylaws eliminating or limiting liability becomes effective.

AB327,92,13 (5) A knowing violation of ch. 408, subject to s. 193.605, or illegal distributions of cooperative assets.

AB327,92,14 193.471 Indemnification. (1) Definitions. In this section:

AB327,92,15 (a) "Official capacity" means any of the following:

AB327,92,17 1. A person's capacity as an officer, employee, or agent of a cooperative or predecessor cooperative.

AB327,92,19 2. A person's capacity as a member of a committee of a cooperative under s. 193.445 or 193.451 (1) or of a committee of a predecessor cooperative.

AB327,92,25 3. With respect to a director, chief executive officer, member, or employee of a cooperative who, at the request of the cooperative, serves as a governor, director, manager, officer, member, partner, trustee, employee, or agent of another organization or employee benefit plan, that person's capacity as a governor, director, manager, officer, member, partner, trustee, employee, or agent, as applicable, of the other organization or employee benefit plan.

AB327,93,6 4. With respect to a person who was a director, chief executive officer, member, or employee of a predecessor cooperative and who, at the request of the predecessor cooperative, served as a governor, director, manager, officer, member, partner, trustee, employee, or agent of another organization or employee benefit plan, that person's capacity as a governor, director, manager, officer, member, partner, trustee, employee, or agent, as applicable, of the other organization or employee benefit plan.

AB327,93,8 (b) "Potential litigant" means a person made or threatened to be made a party to a proceeding by reason of the person's former or present official capacity.

AB327,93,11 (c) "Predecessor cooperative" means a domestic or foreign cooperative that was the predecessor of a cooperative in a merger or other transaction in which the predecessor's existence ceased upon consummation of the transaction.

AB327,93,14 (d) "Proceeding" means a threatened, pending, or completed civil, criminal, administrative, arbitration, or investigative proceeding, including a proceeding by or in the right of the cooperative.

AB327,93,16 (e) "Special legal counsel" means counsel who has not represented any of the following:

AB327,93,17 1. The cooperative or an affiliate.

AB327,93,19 2. The director, manager, member of a committee under s. 193.445 or 193.451 (1), or employee whose indemnification is in issue.

AB327,94,2 (2) Indemnification. (a) Subject to sub. (4), a cooperative shall indemnify a potential litigant against judgments, penalties, and fines applicable to a proceeding, against excise taxes assessed against the person with respect to an employee benefit plan, and against settlements and reasonable expenses, including attorney fees and disbursements, incurred by the potential litigant in connection with the proceeding, if, with respect to the acts or omissions of the potential litigant complained of in the proceeding, all of the following apply:

AB327,94,4 1. The potential litigant has not been indemnified against the same amounts by another person.

AB327,94,5 2. The potential litigant acted in good faith.

AB327,94,7 3. The potential litigant did not receive an improper personal benefit or commit an act for which liability cannot be eliminated or limited under s. 193.465 (2).

AB327,94,9 4. In the case of a criminal proceeding, the potential litigant had no reasonable cause to believe the acts or omissions were unlawful.

AB327,94,20 5. In the case of acts or omissions committed in an official capacity, as defined in sub. (1) (a) 1. or 2., the potential litigant reasonably believed that the acts or omissions were in the best interests of the cooperative or predecessor cooperative, as applicable, and, in the case of acts or omissions committed in an official capacity, as defined in sub. (1) (c) 3. or 4., the potential litigant reasonably believed that the conduct was not opposed to the best interests of the cooperative or predecessor cooperative, as applicable. If the acts or omissions relate to conduct as a director, officer, trustee, employee, or agent of an employee benefit plan, the conduct is not considered to be opposed to the best interests of the cooperative or predecessor cooperative if the potential litigant reasonably believed that the conduct was in the best interests of the participants or beneficiaries of the employee benefit plan.

AB327,94,23 (b) The termination of a proceeding by judgment, order, settlement, or conviction or upon a plea of no contest or its equivalent does not, of itself, establish that the potential litigant did not meet the applicable criteria under par. (a).

AB327,95,10 (3) Advances. Subject to sub. (4), a potential litigant is entitled, upon written request to the cooperative, to payment or reimbursement by the cooperative of reasonable expenses, including attorney fees and disbursements, incurred by the potential litigant in advance of the final disposition of the proceeding if the potential litigant delivers to the cooperative a written statement that the potential litigant believes in good faith that the applicable criteria for indemnification under sub. (2) (a) have been satisfied and a written undertaking by the potential litigant to repay all amounts so paid or reimbursed by the cooperative if a court determines under sub. (6) (c) that the potential litigant is ineligible for indemnification. The written undertaking is an unlimited general obligation of the potential litigant but need not be secured, and the cooperative shall accept the written undertaking without reference to the potential litigant's financial ability to make the repayment.

AB327,95,22 (4) Prohibition, conditions, and limitations on indemnification or advances. The articles or bylaws may prohibit indemnification or advances of expenses otherwise required by subs. (2) and (3). The articles or bylaws may impose limitations on indemnification or advances of expenses or conditions on indemnification or advances of expenses in addition to the conditions contained in subs. (2) and (3), if the limitations or conditions apply equally to all persons or to all persons within a given class. A prohibition, limitation, or condition contained in the articles or bylaws under this subsection does not apply to any person seeking indemnification or advancement of expenses under sub. (2) or (3) with respect to any acts or omissions of the person committed before the effective date of the provision in the articles or the date of adoption of the provision in the bylaws, as applicable, establishing the prohibition, limitation, or condition.

AB327,96,2 (5) Reimbursement to witnesses. This section does not require, or limit the ability of, a cooperative to reimburse expenses, including attorney fees and disbursements, incurred by a person in connection with an appearance as a witness in a proceeding at a time when the person is not a potential litigant.

AB327,96,6 (6) Determination of eligibility. (a) Except as otherwise provided in this subsection, all determinations whether indemnification of a person is required under sub. (2) and whether payment or reimbursement of expenses is required under sub. (3) shall be made as follows:

AB327,96,10 1. By the board, except as otherwise provided in this paragraph. The directors who are, at the time, parties to the proceeding may not vote on the question of a determination under this subdivision and may not be counted in determining the presence of a quorum at a meeting at which such a question is voted upon.

AB327,96,15 2. If a quorum under subd. 1. cannot be obtained because of the number of directors that are parties to the proceeding and except as otherwise provided in this paragraph, by a majority of a committee under s. 193.451 (1) that consists of 2 or more directors not at the time parties to the proceeding and that is duly designated to act in the matter by a majority of all directors, including those who are parties.

AB327,96,21 3. If a determination is not made under subd. 1. or 2. and except as otherwise provided in this paragraph, by special legal counsel, selected either by the board or a committee under s. 193.451 (1). If selected by the board, the vote and determination of the presence of a quorum shall be made as described in subd. 1. If selected by a committee, the committee shall be designated to act and shall vote in the manner described in subd. 2.

AB327,97,2 4. Except as otherwise provided under this paragraph, if a determination is not made under subd. 1. or 2. and if a quorum of the board cannot be obtained and a committee cannot be established as required under subd. 3., by special legal counsel, selected by a majority of all directors, including directors who are parties to the proceeding.

AB327,97,7 5. If a determination is not made under subds. 1. to 4., by the affirmative vote of the members. The membership interests held by parties to the proceeding may not be counted in determining the presence of a quorum at a meeting at which the question of a determination under this subdivision is voted upon and parties holding such membership interests may not vote on the determination.

AB327,97,16 (b) Except as provided in par. (c), with respect to a person who is not, and was not at the time of the acts or omissions complained of in the proceedings, a director, chief executive officer, or person possessing, directly or indirectly, the power to direct or cause the direction of the management or policies of the cooperative, the determination whether indemnification of the person is required under sub. (2) and whether the payment or reimbursement of expenses is required under sub. (3) shall be made by an annually appointed committee under s. 193.451 (1), having at least one member who is a director. Any such committee shall report at least annually to the board concerning its actions.

AB327,98,8 (c) Within 60 days after the termination of the applicable proceeding or the receipt of a written request for indemnification by the cooperative, whichever occurs earlier, a person seeking indemnification under sub. (2) or payment or reimbursement of expenses under sub. (3) may petition the circuit court for a determination of the person's eligibility for indemnification, payment, or reimbursement, if a determination is made under par. (a) or (b) that the person is ineligible, or if no determination is made under par. (a) or (b). The court shall order the cooperative to indemnify the person if indemnification is required under sub. (2) and, if applicable, shall order the cooperative to pay or reimburse the person's expenses if the payment or reimbursement is required under sub. (3). In addition, if the person is a director or officer of the cooperative, the court shall order the cooperative to indemnify the person if, in view of all the relevant circumstances, the person is fairly and reasonably entitled to indemnification, regardless of whether indemnification is required under sub. (2). In a proceeding under this paragraph, the person seeking indemnification, payment, or reimbursement has the burden of establishing that indemnification is required or that the person is entitled to payment or reimbursement of expenses.

AB327,98,13 (7m) Expenses of obtaining court-ordered indemnification. If the court, in a proceeding under sub. (6) (c), determines that the cooperative unreasonably refused a director's or officer's request for indemnification under sub. (2), the court shall order the cooperative to pay the officer's or director's reasonable expenses incurred to obtain the court-ordered indemnification.

AB327,98,18 (9) Insurance. A cooperative may purchase and maintain insurance on behalf of a person in that person's official capacity against any liability asserted against and incurred by the person in or arising from that capacity, whether or not the cooperative would be required to indemnify the person against the liability under sub. (2).

AB327,98,22 (10) Disclosure. A cooperative that indemnifies or advances expenses to a person under sub. (2) or (3) shall report to the members in writing the amount of the indemnification or advance and to whom and on whose behalf it was paid not later than the date of the first members' meeting occurring after the payment.

AB327,98,24 (11) Indemnification of other persons. This section does not limit the power of a cooperative to indemnify persons who do not act in an official capacity.

AB327,99,2 193.475 Officers. (1) Required officers. (a) The board shall elect a chairperson and one or more vice-chairpersons.

AB327,99,4 (b) Except as provided in sub. (3), the board shall elect or appoint a records officer and a financial officer.

AB327,99,7 (2) Chief executive and additional officers. The board may employ a chief executive officer to manage the day-to-day affairs and business of the cooperative. The board may elect additional officers as the articles or bylaws authorize or require.

AB327,99,9 (3) Records officer and financial officer may be combined. The offices of records officer and financial officer may be combined.

AB327,99,12 (4) Officers that shall be directors and members. The chairperson and first vice-chairperson shall each be a director and member. The financial officer, records officer, and additional officers need not be directors or members.

AB327,99,15 193.478 Director Education. A director shall annually attend a course in at least 2 of the following topics offered by a recognized provider of cooperative director education:

AB327,99,16 (1) Duties and responsibilities of a cooperative director.

AB327,99,17 (2) Board and management relations.

AB327,99,18 (3) The board's role in defining and developing cooperative policies.

AB327,99,19 (4) Understanding cooperative governance and structure.

AB327,99,20 (5) Understanding financial statements, key financial ratios, and control tools.

AB327,99,21 (6) Cooperative finance and equity redemption.

AB327,99,22 (7) Cooperative strategic planning.

AB327,99,23 (8) Cooperative membership communication and education.

AB327,99,24 (9) Selecting and evaluating principal cooperative management.

AB327,99,25 (10) Board evaluation.

AB327,100,2 (11) Analyzing and understanding the current cooperative business environment.

AB327,100,3 Subchapter v

AB327,100,4 members

AB327,100,8 193.501 Members. (1) Requirement. A cooperative shall have at least one patron member. A cooperative may have nonpatron members if the patron members by majority vote approve an article, bylaw provision, or amendment provision authorizing nonpatron members.

AB327,100,11 (2) Grouping of members. (a) A cooperative may group members in districts or units, or on another basis, to the extent authorized in the articles or bylaws. The articles or bylaws may authorize the board to determine the grouping of members.

AB327,100,15 (b) The board may take all steps necessary to implement the use of groupings established under par. (a), including setting the time and place and prescribing the rules of conduct for holding meetings by group to elect delegates to members' meetings.

AB327,100,20 (3) Member violations. (a) A member who knowingly, intentionally, or repeatedly violates a provision of the articles or bylaws, or a member control agreement or marketing contract with the cooperative, may be required by the board to surrender the member's membership interest in the cooperative or any of the following portions of the member's membership interest:

AB327,100,21 1. Governance rights and right to assign governance rights.

AB327,100,22 2. Financial rights and right to assign financial rights.

AB327,101,2 (b) 1. Except as provided in subd. 2., if the board requires a member to surrender the member's membership interest or the rights described in par. (a) 2., the cooperative shall refund to the member the lesser of the book value or market value of the membership interest or rights, as applicable, payable in not more than 7 years from the date of surrender.

AB327,101,7 2. If the board requires a patron member to surrender the patron member's rights described in par. (a) 2., the board may transfer all of those rights to a class of financial rights held by members who are not patron members, or to a certificate of interest that carries liquidation rights on par with membership interests and that must be redeemed within 7 years after the transfer as provided in the certificate.

AB327,101,9 (c) The board may reissue or retire and cancel any membership interests required to be surrendered under par. (a).

AB327,101,21 (4) Inspection of cooperative records by member. (a) Except as otherwise provided in this paragraph and pars. (d) and (e), a member may inspect and copy any of the records described in s. 193.245 if the member meets the requirements of par. (b). A member's agent or attorney has the same inspection and copying rights under this paragraph as the member. No member may inspect or copy any records of the cooperative relating to the amount of equity capital in the cooperative held by any person or any accounts receivable or other amounts due the cooperative from any person, or any personnel records or employment records relating to any employee of the cooperative, unless the member is a director or officer acting pursuant to authority of the board. Except as provided under par. (e), records shall be inspected and copied under this paragraph during regular business hours at a reasonable location specified by the cooperative.

AB327,101,23 (b) A member may inspect and copy records under par. (a) if all of the following apply:

AB327,102,3 1. The member has been a member for at least one year immediately preceding the demand to inspect or copy or holds at least 5 percent of all of the outstanding equity interests in the cooperative as of the date the demand is made.

AB327,102,6 2. The member gives the cooperative a written demand to inspect or copy at least 5 business days before the date on which the member wishes to inspect or copy the records.

AB327,102,8 3. The written demand describes with reasonable particularity the purpose for which the demand is made and the records the member desires to inspect or copy.

AB327,102,10 4. The demand is made in good faith and for a proper cooperative business purpose.

AB327,102,11 5. The records are directly connected with the described purpose.

AB327,102,12 (d) This section does not affect any of the following:

AB327,102,14 1. The right of a member to inspect records to the same extent as any other litigant if the member is in litigation with the cooperative.

AB327,102,16 2. The power of a court to compel the production of the cooperative's records for examination.

AB327,102,21 (e) If records to be inspected or copied under par. (a) are in active use or storage and, therefore, not available at the time otherwise provided under par. (a) for inspection or copying, the cooperative shall so notify the member and establish a date and time for the inspection or copying that is within 3 business days of the date otherwise provided under par. (a) for inspection or copying.

AB327,103,2 (f) The right to copy records under par. (a) includes, if reasonable, the right to receive copies from the cooperative. The cooperative may impose a reasonable charge for copies of any records provided to the member. The charge may not exceed the estimated cost of production and reproduction of the records. Any copies made by the member shall be made at the member's expense.

AB327,103,14 (g) If a cooperative refuses to allow a person to inspect or copy records that the person is entitled to inspect or copy under par. (a) within any time period prescribed under par. (e) or, if none, within a reasonable time, the person may petition the circuit court for the county where the cooperative's principal office is located or, if it has no principal office in this state, for the county in which the cooperative's registered office is located, for an order compelling the cooperative to permit the inspection or copying. A court that issues an order under this paragraph may impose reasonable restrictions on the use or distribution of the records by the person. A court that issues an order under this paragraph may do any of the following, unless the cooperative proves that it refused inspection or copying in good faith because it had a reasonable basis for doubt about the right of the person to inspect or copy the records under par. (a):