180.1141(2)(c)1.a.
a. The highest of: the market value per share on the announcement date with respect to the business combination, the market value per share on the interested stockholder's stock acquisition date, the highest price per share paid by the interested stockholder, including brokerage commissions, transfer taxes and soliciting dealers' fees, for shares of the same class or series within the 3 years immediately before and including the announcement date of the business combination, or the highest price per share paid by the interested stockholder, including brokerage commissions, transfer taxes and soliciting dealers' fees, for shares of the same class or series within the 3 years immediately before and including the interested stockholder's stock acquisition date; plus, in each case, interest compounded annually from the earliest date on which that highest per share acquisition price was paid or the per share market value was determined, through the consummation date, at the rate for one-year U.S. treasury obligations from time to time in effect; less the aggregate amount of any cash and the market value, as of the dividend payment date, of any noncash dividends paid per share since that date, up to the amount of that interest.
180.1141(2)(c)1.b.
b. The highest preferential amount per share, if any, to which the holders of shares of that class or series of stock are entitled upon the voluntary or involuntary liquidation of the resident domestic corporation, plus the aggregate amount of dividends declared or due which those holders are entitled to before payment of dividends on another class or series of stock, unless the aggregate amount of those dividends is included in the preferential amount.
180.1141(2)(c)2.
2. The form of consideration to be received by holders of each particular class or series of outstanding stock in the business combination is in cash or, if the interested stockholder previously acquired shares of that class or series, the same form as the interested stockholder previously used to acquire the largest number of shares of that class or series.
180.1141 History
History: 1989 a. 303;
1991 a. 39.
180.1142
180.1142
Determining market value and control. 180.1142(1)(1) For purposes of
ss. 180.1140 to
180.1144, the market value of stock or property other than cash or stock is determined as follows:
180.1142(1)(a)1.
1. The highest closing sale price during the 30 days immediately before the date in question of a share of that class or series of stock on the composite tape for stocks listed on the New York stock exchange, or, if that class or series of stock is not quoted on the composite tape or if that class or series of stock is not listed on the New York stock exchange, on the principal U.S. securities exchange registered under the exchange act on which that class or series of stock is listed.
180.1142(1)(a)2.
2. If that class or series of stock is not listed on an exchange described in
subd. 1., the highest closing bid quotation for a share of that class or series of stock during the 30 days immediately before the date in question on the National Association of Securities Dealers automated quotation system, or any similar system then in use.
180.1142(1)(a)3.
3. If no quotations described in
subd. 2. are available, the fair market value on the date in question of a share of that class or series of stock as determined in good faith by the board of directors of the resident domestic corporation.
180.1142(1)(b)
(b) In the case of property other than cash or stock, the fair market value of the property on the date in question as determined in good faith by the board of directors of the resident domestic corporation.
180.1142(2)
(2) For purposes of
ss. 180.1140 to
180.1144, a person's beneficial ownership of at least 10% of the voting power of a corporation's outstanding voting stock creates a presumption that the person has control of the corporation.
180.1142 History
History: 1989 a. 303;
1991 a. 39.
180.1143
180.1143
Exclusions from business combination restrictions. Sections 180.1140 to
180.1144 do not apply to any of the following:
180.1143(1)
(1) Unless the articles of incorporation provide otherwise, a business combination of a resident domestic corporation with an interested stockholder if the resident domestic corporation did not have a class of voting stock registered or traded on a national securities exchange or registered under section 12 (g) of the exchange act on the interested stockholder's stock acquisition date.
180.1143(2)
(2) Unless the articles of incorporation provide otherwise, a business combination with an interested stockholder who was an interested stockholder immediately before September 10, 1987, unless subsequently the interested stockholder increased its beneficial ownership of the voting power of the outstanding voting stock of the resident domestic corporation to a proportion in excess of the proportion of voting power that the interested stockholder beneficially owned immediately before September 10, 1987, excluding an increase approved by the board of directors of the resident domestic corporation before the increase occurred.
180.1143(3)
(3) A business combination of a resident domestic corporation with an interested stockholder which became an interested stockholder inadvertently, if the interested stockholder satisfies all of the following:
180.1143(3)(a)
(a) As soon as practicable divests itself of a sufficient amount of the voting stock of the resident domestic corporation so that the interested stockholder is no longer the beneficial owner of at least 10% of the voting power of the outstanding voting stock of the resident domestic corporation, or a subsidiary of that resident domestic corporation.
180.1143(3)(b)
(b) Would not at any time within the 3 years before the announcement date with respect to the business combination in question have been an interested stockholder except for the inadvertent acquisition.
180.1143(4)
(4) A business combination of a resident domestic corporation with an interested stockholder which was an interested stockholder immediately before September 10, 1987, and inadvertently increased its beneficial ownership of the voting power of the outstanding voting stock of the resident domestic corporation to a proportion in excess of the proportion of voting power that the interested stockholder beneficially owned immediately before September 10, 1987, if the interested stockholder divests itself of a sufficient amount of voting stock so that the interested stockholder is no longer the beneficial owner of a proportion of the voting power in excess of the proportion of voting power that the interested stockholder held immediately before September 10, 1987.
180.1143 History
History: 1989 a. 303;
1991 a. 39.
180.1144
180.1144
Relationship to other laws. 180.1144(1)
(1) The requirements of
ss. 180.1140 to
180.1144 are in addition to the requirements of other applicable law, including the other provisions of this chapter, and any additional requirements contained in the articles of incorporation or bylaws of a resident domestic corporation with respect to business combinations.
180.1144(2)
(2) For purposes of applying
ss. 180.1140 to
180.1144, if any other provision of this chapter is inconsistent with, in conflict with or contrary to
ss. 180.1140 to
180.1144, that provision does not apply to the extent that it is inconsistent with, in conflict with or contrary to
ss. 180.1140 to
180.1144.
180.1144 History
History: 1989 a. 303;
1991 a. 39.
180.1150
180.1150
Control share voting restrictions. 180.1150(1)(b)
(b) "Person" includes 2 or more individuals or persons acting as a group for the purpose of acquiring or holding securities of a resident domestic corporation, but does not include a bank, broker, nominee, trustee or other person that acquires or holds shares in the ordinary course of business for others in good faith and not for the purpose of avoiding this section unless the person may exercise or direct the exercise of votes with respect to the shares at a meeting of shareholders without further instruction from another.
180.1150(2)
(2) Unless otherwise provided in the articles of incorporation of a resident domestic corporation 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.
180.1150(3)
(3) Shares of a resident domestic corporation held, acquired or to be acquired in any of the following circumstances are excluded from the application of this section:
180.1150(3)(b)
(b) Shares acquired under an agreement entered into before April 22, 1986.
180.1150(3)(c)
(c) Shares acquired by a donee under an inter vivos gift not made to avoid this section or by a distributee as defined in
s. 851.07.
180.1150(3)(d)
(d) Shares acquired under a collateral pledge or security agreement, or similar instrument, not created to avoid this section.
180.1150(3)(f)
(f) Shares acquired from the resident domestic corporation.
180.1150(3)(g)
(g) Shares acquired under an agreement entered into at a time when the resident domestic corporation was neither a resident domestic corporation nor an issuing public corporation under s.
180.1150 (1) (a), 1995 stats.
180.1150(3)(i)
(i) Shares acquired in a transaction incident to which the shareholders of the resident domestic corporation have voted under
sub. (5) to approve the person's resolution delivered under
sub. (4) to restore the full voting power of all of that person's shares.
180.1150(4)
(4) A person desiring a shareholder vote under
sub. (5) shall deliver to the resident domestic corporation at its principal office a form of shareholder resolution with an accompanying notice containing all of the following:
180.1150(4)(b)
(b) A statement that the resolution and notice are submitted under this section.
180.1150(4)(c)
(c) The number of shares of the resident domestic corporation owned by the person of record and beneficially under the meaning prescribed in rule 13d-3 under the securities exchange act of 1934.
180.1150(4)(d)
(d) A specification of the voting power the person has acquired or proposes to acquire for which shareholder approval is sought.
180.1150(4)(e)
(e) The circumstances, terms and conditions under which shares representing in excess of 20% of the voting power were acquired or are proposed to be acquired, set forth in reasonable detail, including the source of funds or other consideration and other details of the financial arrangements of the transactions.
180.1150(4)(f)
(f) If shares representing in excess of 20% of the voting power were acquired or are proposed to be acquired for the purpose of gaining control of the resident domestic corporation, the terms of the proposed acquisition, including but not limited to the source of funds or other consideration and the material terms of the financial arrangements for the acquisition, any plans or proposals of the person to liquidate the resident domestic corporation, to sell all or substantially all of its assets, or merge it or exchange its shares with any other person, to change the location of its principal office or of a material portion of its business activities, to change materially its management or policies of employment, to alter materially its relationship with suppliers or customers or the communities in which it operates, or make any other material change in its business, corporate structure, management or personnel, and such other material information as would affect the decision of a shareholder with respect to voting on the resolution.
180.1150(5)(a)(a) Within 10 days after receipt of a resolution and notice under
sub. (4), the directors of the resident domestic corporation shall fix a date for a special meeting of the shareholders to vote on the resolution. The meeting shall be held no later than 50 days after receipt of the resolution and notice under
sub. (4), unless the person agrees to a later date, and no sooner than 30 days after receipt of the resolution and notice, if the person so requests in writing when delivering the resolution and notice.
180.1150(5)(b)
(b) The notice of the meeting shall include a copy of the resolution and notice delivered under
sub. (4) and a statement by the directors of their position or lack of position on the resolution.
180.1150(5)(c)
(c) Regular voting power is restored if at the meeting called under
par. (a) at which a quorum is present a majority of the voting power of shares represented at the meeting and entitled to vote on the subject matter approve the resolution.
180.1150(5)(d)
(d) A resident domestic corporation is not required to hold more than 2 meetings under
par. (a) in any 12-month period with respect to resolutions and notices presented by the same person unless the person pays to the corporation, in advance of the 3rd or subsequent such meeting the reasonable expenses of the meeting including, without limitation, fees and expenses of counsel, as estimated in good faith by the board of directors of the resident domestic corporation and communicated in writing to the person within 10 days after receipt of a 3rd or subsequent resolution and notice from the person. In such event, notwithstanding
par. (a), the directors may fix a date for the meeting within 10 days after receipt of payment in full of such estimated expenses rather than within 10 days after receipt of the resolution and notice.
180.1150(6)
(6) Any sale or other disposition of shares by a person holding both shares having full voting power and shares having voting power limited under
sub. (2) shall be deemed to reduce the number of shares having limited voting power until such shares are exhausted.
180.1150(7)
(7) A corporation that is not a resident domestic corporation may elect, by express provision in its articles of incorporation, to be subject to this section as if it were a resident domestic corporation unless its articles of incorporation contain a provision stating that the corporation is a close corporation under
ss. 180.1801 to
180.1837.
SALE OF ASSETS
180.1201
180.1201
Sale of assets in regular course of business; mortgage of assets. 180.1201(1)(1) A corporation may, on the terms and conditions and for the consideration determined by the board of directors, do any of the following:
180.1201(1)(a)
(a) Sell, lease, exchange or otherwise dispose of all, or substantially all, of its property in the usual and regular course of business.
180.1201(1)(b)
(b) Sell, lease, exchange or otherwise dispose of less than substantially all of its property whether or not in the usual and regular course of business.
180.1201(1)(c)
(c) Mortgage, pledge, dedicate to the repayment of indebtedness, whether with or without recourse, or otherwise encumber any or all of its property whether or not in the usual and regular course of business.
180.1201(2)
(2) Unless required by the articles of incorporation, approval by the shareholders of a transaction described in
sub. (1) is not required.
180.1201 History
History: 1989 a. 303;
1991 a. 16.
180.1202
180.1202
Sale of assets other than in regular course of business. 180.1202(1)(1) Except as provided in
sub. (5), a corporation may sell, lease, exchange or otherwise dispose of all, or substantially all, of its property, with or without goodwill, otherwise than in the usual and regular course of business, on the terms and conditions and for the consideration determined by the corporation's board of directors, upon adoption of a resolution by the board of directors approving the proposed transaction and approval by its shareholders of the proposed transaction.
180.1202(2)
(2) The corporation shall notify each shareholder, whether or not entitled to vote, of the proposed shareholders' meeting in accordance with
s. 180.0705, except the notice shall be given no fewer than 20 days before the meeting date. The notice shall also state that the purpose, or one of the purposes, of the meeting is to consider the sale, lease, exchange or other disposition of all, or substantially all, of the property of the corporation and contain or be accompanied by a description of the transaction.
180.1202(3)
(3) Unless this chapter, the articles of incorporation or bylaws adopted under authority granted in the articles of incorporation require a greater vote or a vote by voting groups, the proposed transaction is authorized if approved by a majority of all the votes entitled to be cast on the transaction.
180.1202(4)
(4) After a sale, lease, exchange or other disposition of property is authorized, the transaction may be abandoned, subject to any contractual rights, without further shareholder action.
180.1202(5)
(5) A transaction that constitutes a distribution is governed by
s. 180.0640 and not by this section.
180.1202 Annotation
Discussion of term "substantially all" of corporate assets under s. 180.71, 1987 stats. [now s. 180.1202]. Sterman v. Hornbeck,
156 Wis. 2d 556,
457 N.W.2d 874 (Ct. App. 1990).
DISSENTERS' RIGHTS
180.1301(1)
(1) "Beneficial shareholder" means a person who is a beneficial owner of shares held by a nominee as the shareholder.
180.1301(2)
(2) "Corporation" means the issuer corporation or, if the corporate action giving rise to dissenters' rights under
s. 180.1302 is a merger or share exchange that has been effectuated, the surviving domestic corporation or foreign corporation of the merger or the acquiring domestic corporation or foreign corporation of the share exchange.
180.1301(3)
(3) "Dissenter" means a shareholder or beneficial shareholder who is entitled to dissent from corporate action under
s. 180.1302 and who exercises that right when and in the manner required by
ss. 180.1320 to
180.1328.
180.1301(4)
(4) "Fair value", with respect to a dissenter's shares other than in a business combination, means the value of the shares immediately before the effectuation of the corporate action to which the dissenter objects, excluding any appreciation or depreciation in anticipation of the corporate action unless exclusion would be inequitable. "Fair value", with respect to a dissenter's shares in a business combination, means market value, as defined in
s. 180.1130 (9) (a) 1. to
4.
180.1301(5)
(5) "Interest" means interest from the effectuation date of the corporate action until the date of payment, at the average rate currently paid by the corporation on its principal bank loans or, if none, at a rate that is fair and equitable under all of the circumstances.
180.1301(6)
(6) "Issuer corporation" means a domestic corporation that is the issuer of the shares held by a dissenter before the corporate action.
180.1301 History
History: 1989 a. 303;
1991 a. 16.
180.1302(1)(1) Except as provided in
sub. (4) and
s. 180.1008 (3), a shareholder or beneficial shareholder may dissent from, and obtain payment of the fair value of his or her shares in the event of, any of the following corporate actions:
180.1302(1)(a)
(a) Consummation of a plan of merger to which the issuer corporation is a party if any of the following applies:
180.1302(1)(b)
(b) Consummation of a plan of share exchange if the issuer corporation's shares will be acquired, and the shareholder or the shareholder holding shares on behalf of the beneficial shareholder is entitled to vote on the plan.
