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.
180.1161(1)(a)(a) A domestic corporation may convert to another form of business entity if it satisfies the requirements under this section and if the conversion is permitted under the applicable law of the jurisdiction that governs the organization of the business entity into which the domestic corporation is converting.
180.1161(1)(b)
(b) In addition to satisfying any applicable legal requirements of the jurisdiction that governs the organization of the business entity into which the domestic corporation is converting and that relate to the submission and approval of a plan of conversion, the domestic corporation shall comply with the procedures that govern a plan of merger under
s. 180.1103 for the submission and approval of a plan of conversion.
180.1161(2)(a)(a) A business entity other than a domestic corporation may convert to a domestic corporation if it satisfies the requirements under this section and if the conversion is permitted under the applicable law of the jurisdiction that governs the business entity.
180.1161(2)(b)
(b) A business entity converting into a domestic corporation shall comply with the procedures that govern the submission and approval of a plan of conversion of the jurisdiction that governs the business entity.
180.1161(3)
(3) A plan of conversion shall set forth all of the following:
180.1161(3)(a)
(a) The name, form of business entity, and the identity of the jurisdiction governing the business entity that is to be converted.
180.1161(3)(b)
(b) The name, form of business entity, and the identity of the jurisdiction that will govern the business entity after conversion.
180.1161(3)(d)
(d) The manner and basis of converting the shares or other ownership interests of the business entity that is to be converted into the shares or other ownership interests of the new form of business entity.
180.1161(3)(e)
(e) The effective date and time of the conversion, if the conversion is to be effective other than at the close of business on the date of filing the certificate of conversion, as provided under
s. 180.0123.
180.1161(3)(f)
(f) A copy of the articles of incorporation, articles of organization, certificate of limited partnership, or other similar governing document of the business entity after conversion.
180.1161(3)(g)
(g) Other provisions relating to the conversion, as determined by the business entity.
180.1161(4)
(4) When a conversion is effective, all of the following shall occur:
180.1161(4)(a)1.1. Except with respect to taxation laws of each jurisdiction that are applicable upon the conversion of the business entity, the business entity that was converted is no longer subject to the applicable law of the jurisdiction that governed the organization of the prior form of business entity and is subject to the applicable law of the jurisdiction that governs the new form of business entity.
180.1161(4)(a)2.
2. If the conversion is from or to a business entity under the laws applicable to which 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 or become so liable for debts and obligations of such 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 subdivision does not affect liability under any taxation laws.
180.1161(4)(b)
(b) The business entity continues to have all liabilities of the business entity that was converted.
180.1161(4)(c)
(c) The business entity continues to be vested with title to all property owned by the business entity that was converted without reversion or impairment, provided that, if the converting business entity has an interest in real estate in Wisconsin on the date of the conversion, the converting business entity shall transfer that interest to the business entity surviving the conversion and shall execute any real estate transfer return required under
s. 77.22. The business entity surviving the conversion shall promptly record the instrument of conveyance under
s. 59.43 in the office of the register of deeds for each county in which the real estate is located.
180.1161(4)(d)
(d) The articles of incorporation, articles of organization, certificate of limited partnership, or other similar governing document, whichever is applicable, of the business entity are as provided in the plan of conversion.
180.1161(4)(e)
(e) All other provisions of the plan of conversion apply.
180.1161(5)
(5) After a plan of conversion is submitted and approved, the business entity that is to be converted shall deliver to the department for filing a certificate of conversion that includes all of the following:
180.1161(5)(b)
(b) A statement that the plan of conversion was approved in accordance with the applicable law of the jurisdiction that governs the organization of the business entity.
180.1161(5)(c)
(c) The registered agent and registered office, record agent and record office, or other similar agent and office of the business entity before and after conversion.
180.1161(6)
(6) Any civil, criminal, administrative, or investigatory proceeding that is pending by or against a business entity that is converted may be continued by or against the business entity after the effective date of conversion.
180.1161 History
History: 2001 a. 44.
180.1161 Annotation
Next Economy Legislation: Allowing Complex Business Reorganizations,. Boucher, Sosnowski, & Nichols. Wis. Law. Aug. 2002.
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
In determining whether "substantially all" corporate assets are transferred within the meaning of s. 180.71 [now s. 180.1202] more than dollar values must be considered. The determinitive factor is whether the sale changes the nature of corporate activity. 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.
180.1301 Annotation
"Date of payment" in sub. (5) refers to the actual payment date by a corporation following a special proceeding, even if the payment occurs after a "verdict, decision or report," within the meaning of s. 814.04 (4), or after "judgment," within the meaning of s. 815.05 (8). Thus the definition of interest contained in sub. (5) applies to the time period following a court decision on fair value until final payment is made. HMO-W Incorporated v. SSM Health Care System, 2003 WI App 137,
266 Wis. 2d 69,
667 N.W.2d 733,
02-0042.
180.1301 Annotation
The phrase "rate that is fair and equitable under all of the circumstances" in sub. (5) directs the circuit court to consider the circumstances of the particular case in determining the the interest rate to be paid. It was appropriate under this standard to look at the borrowing power of a parent corporation to determine if the rate the subsidiary would obtain would be the rate the parent could obtain. HMO-W Incorporated v. SSM Health Care System, 2003 WI App 137,
266 Wis. 2d 69,
667 N.W.2d 733,
02-0042.
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.
180.1302(1)(c)
(c) Consummation of a sale or exchange of all, or substantially all, of the property of the issuer corporation other than in the usual and regular course of business, including a sale in dissolution, but not including any of the following:
180.1302(1)(c)2.
2. A sale for cash pursuant to a plan by which all or substantially all of the net proceeds of the sale will be distributed to the shareholders within one year after the date of sale.
180.1302(1)(d)
(d) Except as provided in
sub. (2), any other corporate action taken pursuant to a shareholder vote to the extent that the articles of incorporation, bylaws or a resolution of the board of directors provides that the voting or nonvoting shareholder or beneficial shareholder may dissent and obtain payment for his or her shares.
180.1302(2)
(2) Except as provided in
sub. (4) and
s. 180.1008 (3), the articles of incorporation may allow a shareholder or beneficial shareholder to dissent from an amendment of the articles of incorporation and obtain payment of the fair value of his or her shares if the amendment materially and adversely affects rights in respect of a dissenter's shares because it does any of the following:
180.1302(2)(a)
(a) Alters or abolishes a preferential right of the shares.
180.1302(2)(b)
(b) Creates, alters or abolishes a right in respect of redemption, including a provision respecting a sinking fund for the redemption or repurchase, of the shares.
180.1302(2)(c)
(c) Alters or abolishes a preemptive right of the holder of shares to acquire shares or other securities.
180.1302(2)(d)
(d) Excludes or limits the right of the shares to vote on any matter or to cumulate votes, other than a limitation by dilution through issuance of shares or other securities with similar voting rights.
180.1302(2)(e)
(e) Reduces the number of shares owned by the shareholder or beneficial shareholder to a fraction of a share if the fractional share so created is to be acquired for cash under
s. 180.0604.
180.1302(4)
(4) Except in a business combination or unless the articles of incorporation provide otherwise,
subs. (1) and
(2) do not apply to the holders of shares of any class or series if the shares of the class or series are registered on a national securities exchange or quoted on the National Association of Securities Dealers, Inc., automated quotations system on the record date fixed to determine the shareholders entitled to notice of a shareholders meeting at which shareholders are to vote on the proposed corporate action.
180.1302(5)
(5) Except as provided in
s. 180.1833, a shareholder or beneficial shareholder entitled to dissent and obtain payment for his or her shares under
ss. 180.1301 to
180.1331 may not challenge the corporate action creating his or her entitlement unless the action is unlawful or fraudulent with respect to the shareholder, beneficial shareholder or issuer corporation.
180.1302 History
History: 1989 a. 303;
1991 a. 16;
2001 a. 44.
