180.0833(1)(1) Except as provided in
sub. (3), a director who votes for or assents to a distribution made in violation of
s. 180.0640 or the articles of incorporation is personally liable to the corporation for the amount of the distribution that exceeds what could have been distributed without violating
s. 180.0640 or the articles of incorporation, if it is established that the director's vote or assent constitutes conduct described by
s. 180.0828 (1) (a),
(b),
(c) or
(d). In any proceeding brought under this section, a director has all of the defenses ordinarily available to a director.
180.0833(2)
(2) A director who is liable under
sub. (1) for an unlawful distribution is entitled to contribution from all of the following persons:
180.0833(2)(a)
(a) Every other director who could be held liable under
sub. (1) for the unlawful distribution.
180.0833(2)(b)
(b) Each shareholder for the amount that the shareholder accepted knowing that the distribution was made in violation of
s. 180.0640 or the articles of incorporation.
180.0833(3)
(3) A proceeding under this section is barred unless it is brought within 2 years after the date on which the effect of the distribution was measured under
s. 180.0640 (5).
180.0833 History
History: 1989 a. 303.
180.0840(1)(1) A corporation shall have the officers described in its bylaws or appointed by its board of directors by resolution not inconsistent with the bylaws.
180.0840(2)
(2) A duly appointed officer may appoint one or more officers or assistant officers if authorized by the bylaws or the board of directors.
180.0840(3)
(3) The same natural person may simultaneously hold more than one office in a corporation.
180.0840 History
History: 1989 a. 303;
1991 a. 16.
180.0841
180.0841
Duties of officers. Each officer has the authority and shall perform the duties set forth in the bylaws or, to the extent not inconsistent with the bylaws, the duties prescribed by the board of directors or by direction of an officer authorized by the bylaws or by the board of directors to prescribe the duties of other officers.
180.0841 History
History: 1989 a. 303.
180.0843
180.0843
Resignation and removal of officers. 180.0843(1)
(1) An officer may resign at any time by delivering notice to the corporation that complies with
s. 180.0141. The resignation is effective when the notice is delivered, unless the notice specifies a later effective date and the corporation accepts the later effective date. If a resignation is effective at a later date, the corporation's board of directors may fill the pending vacancy before the effective date if the board of directors provides that the successor may not take office until the effective date.
180.0843(2)
(2) The board of directors may remove any officer and, unless restricted by the bylaws or by the board of directors, an officer may remove any officer or assistant officer appointed by that officer under
s. 180.0840 (2), at any time, with or without cause and notwithstanding the contract rights, if any, of the officer removed.
180.0843 History
History: 1989 a. 303.
180.0844
180.0844
Contract rights of officers. 180.0844(1)
(1) The appointment of an officer does not itself create contract rights.
180.0844(2)
(2) Except as provided in
s. 180.0843 (2), an officer's resignation or removal is subject to any remedies provided by any contract between the officer and the corporation or otherwise provided by law.
180.0844 History
History: 1989 a. 303.
180.0850(1)
(1) "Corporation" means a domestic corporation and any domestic or foreign predecessor of a domestic corporation where the predecessor corporation's existence ceased upon the consummation of a merger or other transaction.
180.0850(2)
(2) "Director or officer" of a corporation means any of the following:
180.0850(2)(a)
(a) An individual who is or was a director or officer of the corporation.
180.0850(2)(b)
(b) An individual who, while a director or officer of the corporation, is or was serving at the corporation's request as a director, officer, partner, trustee, member of any governing or decision-making committee, manager, employe or agent of another corporation or foreign corporation, limited liability company, partnership, joint venture, trust or other enterprise.
180.0850(2)(c)
(c) An individual who, while a director or officer of the corporation, is or was serving an employe benefit plan because his or her duties to the corporation also impose duties on, or otherwise involve services by, the person to the plan or to participants in or beneficiaries of the plan.
180.0850(2)(d)
(d) Unless the context requires otherwise, the estate or personal representative of a director or officer.
180.0850(3)
(3) "Expenses" include fees, costs, charges, disbursements, attorney fees and any other expenses incurred in connection with a proceeding.
180.0850(4)
(4) "Liability" includes the obligation to pay a judgment, settlement, penalty, assessment, forfeiture or fine, including an excise tax assessed with respect to an employe benefit plan, and reasonable expenses.
180.0850(5)
(5) "Party" includes an individual who was or is, or who is threatened to be made, a named defendant or respondent in a proceeding.
180.0850(6)
(6) "Proceeding" means any threatened, pending or completed civil, criminal, administrative or investigative action, suit, arbitration or other proceeding, whether formal or informal, which involves foreign, federal, state or local law and which is brought by or in the right of the corporation or by any other person.
180.0850 History
History: 1989 a. 303;
1993 a. 112.
180.0851
180.0851
Mandatory indemnification. 180.0851(1)
(1) A corporation shall indemnify a director or officer, to the extent that he or she has been successful on the merits or otherwise in the defense of a proceeding, for all reasonable expenses incurred in the proceeding if the director or officer was a party because he or she is a director or officer of the corporation.
180.0851(2)(a)(a) In cases not included under
sub. (1), a corporation shall indemnify a director or officer against liability incurred by the director or officer in a proceeding to which the director or officer was a party because he or she is a director or officer of the corporation, unless liability was incurred because the director or officer breached or failed to perform a duty that he or she owes to the corporation and the breach or failure to perform constitutes any of the following:
180.0851(2)(a)1.
1. A wilful failure to deal fairly with the corporation or its shareholders in connection with a matter in which the director or officer has a material conflict of interest.
180.0851(2)(a)2.
2. A violation of the criminal law, unless the director or officer had reasonable cause to believe that his or her conduct was lawful or no reasonable cause to believe that his or her conduct was unlawful.
180.0851(2)(a)3.
3. A transaction from which the director or officer derived an improper personal profit.
180.0851(2)(b)
(b) Determination of whether indemnification is required under this subsection shall be made under
s. 180.0855.
180.0851(2)(c)
(c) The termination of a proceeding by judgment, order, settlement or conviction, or upon a plea of no contest or an equivalent plea, does not, by itself, create a presumption that indemnification of the director or officer is not required under this subsection.
180.0851(3)
(3) A director or officer who seeks indemnification under this section shall make a written request to the corporation.
180.0851(4)(a)(a) Indemnification under this section is not required to the extent limited by the articles of incorporation under
s. 180.0852.
180.0851(4)(b)
(b) Indemnification under this section is not required if the director or officer has previously received indemnification or allowance of expenses from any person, including the corporation, in connection with the same proceeding.
180.0851 History
History: 1989 a. 303.
180.0852
180.0852
Corporation may limit indemnification. A corporation's articles of incorporation may limit its obligation to indemnify under
s. 180.0851. Any provision of the articles of incorporation relating to a corporation's power or obligation to indemnify that was in existence on June 13, 1987, does not constitute a limitation on the corporation's obligation to indemnify under
s. 180.0851. A limitation under this section applies if the first alleged act or omission of a director or officer for which indemnification is sought occurred while the limitation was in effect.
180.0852 History
History: 1989 a. 303.
180.0853
180.0853
Allowance of expenses as incurred. Upon written request by a director or officer who is a party to a proceeding, a corporation may pay or reimburse his or her reasonable expenses as incurred if the director or officer provides the corporation with all of the following:
180.0853(1)
(1) A written affirmation of his or her good faith belief that he or she has not breached or failed to perform his or her duties to the corporation.
180.0853(2)
(2) A written undertaking, executed personally or on his or her behalf, to repay the allowance and, if required by the corporation, to pay reasonable interest on the allowance to the extent that it is ultimately determined under
s. 180.0855 that indemnification under
s. 180.0851 (2) is not required and that indemnification is not ordered by a court under
s. 180.0854 (2) (b). The undertaking under this subsection shall be an unlimited general obligation of the director or officer and may be accepted without reference to his or her ability to repay the allowance. The undertaking may be secured or unsecured.
180.0853 History
History: 1989 a. 303 180.0854
180.0854
Court-ordered indemnification. 180.0854(1)
(1) Except as provided otherwise by written agreement between the director or officer and the corporation, a director or officer who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. Application shall be made for an initial determination by the court under
s. 180.0855 (5) or for review by the court of an adverse determination under
s. 180.0855 (1),
(2),
(3),
(4) or
(6). After receipt of an application, the court shall give any notice that it considers necessary.
180.0854(2)
(2) The court shall order indemnification if it determines any of the following:
180.0854(2)(a)
(a) That the director or officer is entitled to indemnification under
s. 180.0851 (1) or
(2). If the court also determines that the corporation unreasonably refused the director's or officer's request for indemnification, the court shall order the corporation to pay the director's or officer's reasonable expenses incurred to obtain the court-ordered indemnification.
180.0854(2)(b)
(b) That the director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, regardless of whether indemnification is required under
s. 180.0851 (2).
180.0854 History
History: 1989 a. 303.
180.0855
180.0855
Determination of right to indemnification. Unless otherwise provided by the articles of incorporation or bylaws or by written agreement between the director or officer and the corporation, the director or officer seeking indemnification under
s. 180.0851 (2) shall select one of the following means for determining his or her right to indemnification:
180.0855(1)
(1) By a majority vote of a quorum of the board of directors consisting of directors who are not at the time parties to the same or related proceedings. If a quorum of disinterested directors cannot be obtained, by majority vote of a committee duly appointed by the board of directors and consisting solely of 2 or more directors who are not at the time parties to the same or related proceedings. Directors who are parties to the same or related proceedings may participate in the designation of members of the committee.
180.0855(2)
(2) By independent legal counsel selected by a quorum of the board of directors or its committee in the manner prescribed in
sub. (1) or, if unable to obtain such a quorum or committee, by a majority vote of the full board of directors, including directors who are parties to the same or related proceedings.
180.0855(3)
(3) By a panel of 3 arbitrators consisting of one arbitrator selected by those directors entitled under
sub. (2) to select independent legal counsel, one arbitrator selected by the director or officer seeking indemnification and one arbitrator selected by the 2 arbitrators previously selected.
180.0855(4)
(4) By an affirmative vote of shares as provided in
s. 180.0725. Shares owned by, or voted under the control of, persons who are at the time parties to the same or related proceedings, whether as plaintiffs or defendants or in any other capacity, may not be voted in making the determination.
180.0855(6)
(6) By any other method provided for in any additional right to indemnification permitted under
s. 180.0858.
180.0855 History
History: 1989 a. 303.
180.0856
180.0856
Indemnification and allowance of expenses of employes and agents. 180.0856(1)
(1) A corporation shall indemnify an employe who is not a director or officer of the corporation, to the extent that he or she has been successful on the merits or otherwise in defense of a proceeding, for all reasonable expenses incurred in the proceeding if the employe was a party because he or she was an employe of the corporation.
180.0856(2)
(2) In addition to the indemnification required by
sub. (1), a corporation may indemnify and allow reasonable expenses of an employe or agent who is not a director or officer of the corporation to the extent provided by the articles of incorporation or bylaws, by general or specific action of the board of directors or by contract.
180.0856 History
History: 1989 a. 303;
1991 a. 16.
180.0857
180.0857
Insurance. A corporation may purchase and maintain insurance on behalf of an individual who is an employe, agent, director or officer of the corporation against liability asserted against or incurred by the individual in his or her capacity as an employe, agent, director or officer or arising from his or her status as an employe, agent, director or officer, regardless of whether the corporation is required or authorized to indemnify or allow expenses to the individual against the same liability under
ss. 180.0851,
180.0853,
180.0856 and
180.0858.
180.0857 History
History: 1989 a. 303.
180.0858
180.0858
Additional rights to indemnification and allowance of expenses. 180.0858(1)
(1) Except as provided in
sub. (2),
ss. 180.0851 and
180.0853 do not preclude any additional right to indemnification or allowance of expenses that a director or officer may have under any of the following:
180.0858(1)(b)
(b) A written agreement between the director or officer and the corporation.
180.0858(1)(d)
(d) A resolution that is adopted, after notice, by a majority vote of all of the corporation's voting shares then issued and outstanding.
180.0858(2)
(2) Regardless of the existence of an additional right under
sub. (1), the corporation may not indemnify a director or officer, or permit a director or officer to retain any allowance of expenses unless it is determined by or on behalf of the corporation that the director or officer did not breach or fail to perform a duty that he or she owes to the corporation which constitutes conduct under
s. 180.0851 (2) (a) 1.,
2.,
3. or
4. A director or officer who is a party to the same or related proceeding for which indemnification or an allowance of expenses is sought may not participate in a determination under this subsection.
180.0858(3)
(3) Sections 180.0850 to
180.0859 do not affect a corporation's power to pay or reimburse expenses incurred by a director or officer in any of the following circumstances:
180.0858(3)(a)
(a) As a witness in a proceeding to which he or she is not a party.
180.0858(3)(b)
(b) As a plaintiff or petitioner in a proceeding because he or she is or was an employe, agent, director or officer of the corporation.
180.0858 History
History: 1989 a. 303;
1991 a. 16.
180.0859
180.0859
Indemnification and insurance against securities law claims. 180.0859(1)(1) It is the public policy of this state to require or permit indemnification, allowance of expenses and insurance for any liability incurred in connection with a proceeding involving securities regulation described under
sub. (2) to the extent required or permitted under
ss. 180.0850 to
180.0858.
180.0859(2)
(2) Sections 180.0850 to
180.0858 apply, to the extent applicable to any other proceeding, to any proceeding involving a federal or state statute, rule or regulation regulating the offer, sale or purchase of securities, securities brokers or dealers, or investment companies or investment advisors.
180.0859 History
History: 1989 a. 303.
