181.04 Annotation
Revisions of the nonstock corporation law. Hardy, 1974 WBB No. 3.
181.041
181.041
Definitions applicable to indemnification and insurance provisions. In
ss. 181.041 to
181.053:
181.041(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.
181.041(2)
(2) "Director or officer" means any of the following:
181.041(2)(a)
(a) A natural person who is or was a director or officer of a corporation.
181.041(2)(b)
(b) A natural person who, while a director or officer of a 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.
181.041(2)(c)
(c) A natural person who, while a director or officer of a corporation, is or was serving an employe benefit plan because his or her duties to the corporation also imposed duties on, or otherwise involved services by, the person to the plan or to participants in or beneficiaries of the plan.
181.041(2)(d)
(d) Unless the context requires otherwise, the estate or personal representative of a director or officer.
181.041(3)
(3) "Expenses" include fees, costs, charges, disbursements, attorney fees and any other expenses incurred in connection with a proceeding.
181.041(4)
(4) "Liability" includes the obligation to pay a judgment, settlement, penalty, assessment, forfeiture or fine, including any excise tax assessed with respect to an employe benefit plan, and reasonable expenses.
181.041(5)
(5) "Party" means a natural person who was or is, or who is threatened to be made, a named defendant or respondent in a proceeding.
181.041(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.
181.041 History
History: 1987 a. 13;
1993 a. 112.
181.042
181.042
Mandatory indemnification. 181.042(1)
(1) A corporation shall indemnify a director or officer, to the extent 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.
181.042(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 he or she owes to the corporation and the breach or failure to perform constitutes any of the following:
181.042(2)(a)1.
1. A wilful failure to deal fairly with the corporation or its members in connection with a matter in which the director or officer has a material conflict of interest.
181.042(2)(a)2.
2. A violation of criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or no reasonable cause to believe his or her conduct was unlawful.
181.042(2)(a)3.
3. A transaction from which the director or officer derived an improper personal profit.
181.042(2)(b)
(b) Determination of whether indemnification is required under this subsection shall be made under
s. 181.043.
181.042(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.
181.042(3)
(3) A director or officer who seeks indemnification under this section shall make a written request to the corporation.
181.042(4)(a)(a) Indemnification under this section is not required to the extent limited by the articles of incorporation under
s. 181.045.
181.042(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.
181.042 History
History: 1987 a. 13.
181.042 Annotation
Cooperative indemnification. La Rowe and Weine. WBB Sept. 1988.
181.043
181.043
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. 181.042 (2) shall select one of the following means for determining his or her right to indemnification:
181.043(1)
(1) By majority vote of a quorum of the board of directors consisting of directors 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 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.
181.043(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.
181.043(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.
181.043(4)
(4) By an affirmative vote of members as provided in
s. 181.17, if there are members having voting rights. Membership rights 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.
181.043(6)
(6) By any other method provided for in any additional right to indemnification permitted under
s. 181.047.
181.043 History
History: 1987 a. 13.
181.044
181.044
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:
181.044(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.
181.044(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. 181.043 that indemnification under
s. 181.042 (2) is not required and that indemnification is not ordered by a court under
s. 181.049 (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.
181.044 History
History: 1987 a. 13.
181.045
181.045
Corporation may limit indemnification. 181.045(1)
(1) A corporation's obligations to indemnify under
s. 181.042 may be limited as follows:
181.045(1)(a)
(a) If the corporation is incorporated on or after June 13, 1987, by the articles of incorporation, including any amendments or restatements of the articles of incorporation.
181.045(1)(b)
(b) If the corporation was incorporated before June 13, 1987, by an amendment to, or restatement of, the articles of incorporation which becomes effective on or after June 13, 1987.
181.045(2)
(2) A limitation under
sub. (1) applies if the first alleged act of a director or officer for which indemnification is sought occurred while the limitation was in effect.
181.045 History
History: 1987 a. 13.
181.047
181.047
Additional rights to indemnification and allowance of expenses. 181.047(1)
(1) Except as provided in
sub. (2),
ss. 181.042 and
181.044 do not preclude any additional right to indemnification or allowance of expenses that a director or officer may have under any of the following:
181.047(1)(b)
(b) A written agreement between the director or officer and the corporation.
181.047(1)(d)
(d) A resolution, after notice, adopted by a majority vote of members who are entitled to vote.
181.047(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 he or she owes to the corporation which constitutes conduct under
s. 181.042 (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.
181.047(3)
(3) Sections 181.041 to
181.053 do not affect a corporation's power to pay or reimburse expenses incurred by a director or officer in any of the following circumstances:
181.047(3)(a)
(a) As a witness in a proceeding to which he or she is not a party.
181.047(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.
181.047 History
History: 1987 a. 13.
181.049
181.049
Court-ordered indemnification. 181.049(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. 181.043 (5) or for review by the court of an adverse determination under
s. 181.043 (1),
(2),
(3),
(4) or
(6). After receipt of an application, the court shall give any notice it considers necessary.
181.049(2)
(2) The court shall order indemnification if it determines any of the following:
181.049(2)(a)
(a) That the director or officer is entitled to indemnification under
s. 181.042 (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.
181.049(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. 181.042 (2).
181.049 History
History: 1987 a. 13.
181.051
181.051
Indemnification and allowance of expenses of employes and agents. A corporation may indemnify and allow reasonable expenses of an employe or agent who is not a director or officer to the extent provided by the articles of incorporation or bylaws, by general or specific action of the board of directors or by contract.
181.051 History
History: 1987 a. 13.
181.053
181.053
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 and 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. 181.042,
181.044,
181.047 and
181.051.
181.053 History
History: 1987 a. 13.
181.057
181.057
Effect of unauthorized corporate acts. No act of a corporation and no conveyance or transfer of real or personal property to or by a corporation shall be invalid by reason of the fact that the corporation was without capacity or power to do such act or to make or receive such conveyance or transfer, but such lack of capacity or power may be asserted:
181.057(1)
(1) In a proceeding by a member or director against the corporation to enjoin the doing of any act or acts or the transfer of real or personal property by or to the corporation. If the unauthorized acts or transfer sought to be enjoined are being, or are to be, performed or made pursuant to any contract to which the corporation is a party, the court may, if all of the parties to the contract are parties to the proceeding, and if it deems the same to be equitable, set aside and enjoin the performance of such contract, and in so doing may allow to the corporation or to the other parties to the contract, as the case may be, compensation for the loss or damage sustained by either of them which may result from the action of the court in setting aside and enjoining the performance of such contract, but anticipated profits to be derived from the performance of the contract shall not be awarded by the court as a loss or damage sustained.
181.057(2)
(2) In a proceeding by the corporation, whether acting directly or through a receiver, trustee, or other legal representative, or through members in a representative suit, against the incumbent or former officers or directors of the corporation.
181.057(3)
(3) In a proceeding by the attorney general, as provided in this chapter, to dissolve the corporation, or in a proceeding by the attorney general to enjoin the corporation from performing unauthorized acts.
181.057 History
History: 1979 c. 110;
1987 a. 13 s.
14; Stats. 1987 s. 181.057.
181.06
181.06
Corporate name. The corporate name:
181.06(1)
(1) Shall contain the word "corporation", "incorporated", or "limited", or an abbreviation of one of such words; this subsection shall apply only to corporations organized or changing their name after the enactment of this chapter.
181.06(2)
(2) Shall not contain any word or phrase which indicates or implies that it is organized for any purpose other than a purpose for which corporations may be organized under this chapter.
181.06(3)
(3) Shall not be the same as or deceptively similar to the name of any corporation, limited liability company, limited liability partnership or limited partnership existing under any law of this state, or any foreign corporation, foreign limited liability company, foreign limited liability partnership or foreign limited partnership authorized to transact business or conduct affairs in this state, or a name the exclusive right to which is at the time reserved in the manner provided in this chapter or reserved or registered in the manner provided in
ch. 180, except that this subsection shall not apply if the applicant files with the department either of the following:
181.06(3)(a)
(a) The written consent of such other corporation or holder of a reserved or registered name to use the same or deceptively similar name and one or more words are added to make such name distinguishable from such other name; or
181.06(3)(b)
(b) A certified copy of a final decree of a court of competent jurisdiction establishing the prior right of the applicant to the use of such name in this state.
181.06(4)
(4) Subsections (1),
(2) and
(3) shall not apply to any corporation organized under any other chapter of the statutes which may elect to become subject to this chapter.
181.06(5)
(5) A corporation with which another corporation, domestic or foreign, is merged, or which is formed by the reorganization or consolidation of one or more domestic or foreign corporations or upon a sale, lease or other disposition to or exchange with, a domestic corporation of all or substantially all of the assets of another corporation, domestic or foreign, including its name, may have the same name as that used in this state by any of such corporations if such other corporation was organized under the laws of, or is authorized to transact business or conduct affairs in, this state.
181.07(1)(1) The exclusive right to the use of a corporate name may be reserved by:
181.07(1)(a)
(a) Any person intending to organize a corporation under this chapter.
181.07(1)(b)
(b) Any domestic corporation intending to change its name.
181.07(2)
(2) The reservation shall be made by filing with the department an application to reserve a specified corporate name, executed by the applicant or making a telephone application to reserve a specified corporate name. If the department finds that the name is available for corporate use, the department shall reserve the same for the exclusive use of the applicant for a period of 60 days. The department shall cancel the telephone application to reserve a specified corporate name if the department does not receive the proper fee within 15 business days after the application.
181.07(3)
(3) Any corporation, domestic or foreign entitled to the use of its corporate name under the laws of this state, may upon merger, consolidation, change of name or dissolution reserve the exclusive right to that corporate name for a period of not to exceed 10 years by filing with the department an application to reserve the right to that name, executed by the corporation. This application shall be filed with the department simultaneously with the filing of articles of merger, consolidation or dissolution or with the filing of articles of amendment or restated articles which change the corporate name.
181.07(5)
(5) The right to the exclusive use of a specified corporate name so reserved may be transferred to any other person or corporation by filing with the department a notice of such transfer, executed by the applicant for whom the name was reserved, and specifying the name and address of the transferee.
