180.1302 Annotation
Minority discounts are inappropriate under dissenters' rights statutes and will not be applied in determining "fair value" under sub. (1). Each dissenting shareholder should be assigned the proportionate interest of his or her shares in the going interest in the entire company. HMO-W Incorporated v. SSM Health Care System, 2000 WI 46,
234 Wis. 2d 707,
611 N.W.2d 250,
98-2834.
180.1302 Annotation
The Role of Discounts in Determining "Fair Value" Under Wisconsin's Dissenters' Rights Statutes: The Case for Discounts. Emory. 1995 WLR 1155.
180.1303
180.1303
Dissent by shareholders and beneficial shareholders. 180.1303(1)(1) A shareholder may assert dissenters' rights as to fewer than all of the shares registered in his or her name only if the shareholder dissents with respect to all shares beneficially owned by any one person and notifies the corporation in writing of the name and address of each person on whose behalf he or she asserts dissenters' rights. The rights of a shareholder who under this subsection asserts dissenters' rights as to fewer than all of the shares registered in his or her name are determined as if the shares as to which he or she dissents and his or her other shares were registered in the names of different shareholders.
180.1303(2)
(2) A beneficial shareholder may assert dissenters' rights as to shares held on his or her behalf only if the beneficial shareholder does all of the following:
180.1303(2)(a)
(a) Submits to the corporation the shareholder's written consent to the dissent not later than the time that the beneficial shareholder asserts dissenters' rights.
180.1303(2)(b)
(b) Submits the consent under
par. (a) with respect to all shares of which he or she is the beneficial shareholder.
180.1303 History
History: 1989 a. 303.
180.1320
180.1320
Notice of dissenters' rights. 180.1320(1)
(1) If proposed corporate action creating dissenters' rights under
s. 180.1302 is submitted to a vote at a shareholders' meeting, the meeting notice shall state that shareholders and beneficial shareholders are or may be entitled to assert dissenters' rights under
ss. 180.1301 to
180.1331 and shall be accompanied by a copy of those sections.
180.1320(2)
(2) If corporate action creating dissenters' rights under
s. 180.1302 is authorized without a vote of shareholders, the corporation shall notify, in writing and in accordance with
s. 180.0141, all shareholders entitled to assert dissenters' rights that the action was authorized and send them the dissenters' notice described in
s. 180.1322.
180.1320 History
History: 1989 a. 303.
180.1320 Annotation
When the plaintiff was not a shareholder at the time of the complained of acts, it had no right to vote in dissent to a plan of liquidation and dissolution, and it could not be a dissenter entitled to notice of dissenters' rights, as only one who can vote in dissent is entitled to such notice under this section. Borne v. Gonstead Advanced Techniques, Inc. 2003 WI App 135,
266 Wis. 2d 253,
667 N.W.2d 709,
01-2624.
180.1321
180.1321
Notice of intent to demand payment. 180.1321(1)
(1) If proposed corporate action creating dissenters' rights under
s. 180.1302 is submitted to a vote at a shareholders' meeting, a shareholder or beneficial shareholder who wishes to assert dissenters' rights shall do all of the following:
180.1321(1)(a)
(a) Deliver to the issuer corporation before the vote is taken written notice that complies with
s. 180.0141 of the shareholder's or beneficial shareholder's intent to demand payment for his or her shares if the proposed action is effectuated.
180.1321(1)(b)
(b) Not vote his or her shares in favor of the proposed action.
180.1321(2)
(2) A shareholder or beneficial shareholder who fails to satisfy
sub. (1) is not entitled to payment for his or her shares under
ss. 180.1301 to
180.1331.
180.1321 History
History: 1989 a. 303.
180.1322(1)(1) If proposed corporate action creating dissenters' rights under
s. 180.1302 is authorized at a shareholders' meeting, the corporation shall deliver a written dissenters' notice to all shareholders and beneficial shareholders who satisfied
s. 180.1321.
180.1322(2)
(2) The dissenters' notice shall be sent no later than 10 days after the corporate action is authorized at a shareholders' meeting or without a vote of shareholders, whichever is applicable. The dissenters' notice shall comply with
s. 180.0141 and shall include or have attached all of the following:
180.1322(2)(a)
(a) A statement indicating where the shareholder or beneficial shareholder must send the payment demand and where and when certificates for certificated shares must be deposited.
180.1322(2)(b)
(b) For holders of uncertificated shares, an explanation of the extent to which transfer of the shares will be restricted after the payment demand is received.
180.1322(2)(c)
(c) A form for demanding payment that includes the date of the first announcement to news media or to shareholders of the terms of the proposed corporate action and that requires the shareholder or beneficial shareholder asserting dissenters' rights to certify whether he or she acquired beneficial ownership of the shares before that date.
180.1322(2)(d)
(d) A date by which the corporation must receive the payment demand, which may not be fewer than 30 days nor more than 60 days after the date on which the dissenters' notice is delivered.
180.1322 History
History: 1989 a. 303.
180.1323
180.1323
Duty to demand payment. 180.1323(1)
(1) A shareholder or beneficial shareholder who is sent a dissenters' notice described in
s. 180.1322, or a beneficial shareholder whose shares are held by a nominee who is sent a dissenters' notice described in
s. 180.1322, must demand payment in writing and certify whether he or she acquired beneficial ownership of the shares before the date specified in the dissenters' notice under
s. 180.1322 (2) (c). A shareholder or beneficial shareholder with certificated shares must also deposit his or her certificates in accordance with the terms of the notice.
180.1323(2)
(2) A shareholder or beneficial shareholder with certificated shares who demands payment and deposits his or her share certificates under
sub. (1) retains all other rights of a shareholder or beneficial shareholder until these rights are canceled or modified by the effectuation of the corporate action.
180.1323(3)
(3) A shareholder or beneficial shareholder with certificated or uncertificated shares who does not demand payment by the date set in the dissenters' notice, or a shareholder or beneficial shareholder with certificated shares who does not deposit his or her share certificates where required and by the date set in the dissenters' notice, is not entitled to payment for his or her shares under
ss. 180.1301 to
180.1331.
180.1323 History
History: 1989 a. 303.
180.1324
180.1324
Restrictions on uncertificated shares. 180.1324(1)(1) The issuer corporation may restrict the transfer of uncertificated shares from the date that the demand for payment for those shares is received until the corporate action is effectuated or the restrictions released under
s. 180.1326.
180.1324(2)
(2) The shareholder or beneficial shareholder who asserts dissenters' rights as to uncertificated shares retains all of the rights of a shareholder or beneficial shareholder, other than those restricted under
sub. (1), until these rights are canceled or modified by the effectuation of the corporate action.
180.1324 History
History: 1989 a. 303.
180.1325(1)(1) Except as provided in
s. 180.1327, as soon as the corporate action is effectuated or upon receipt of a payment demand, whichever is later, the corporation shall pay each shareholder or beneficial shareholder who has complied with
s. 180.1323 the amount that the corporation estimates to be the fair value of his or her shares, plus accrued interest.
180.1325(2)
(2) The payment shall be accompanied by all of the following:
180.1325(2)(a)
(a) The corporation's latest available financial statements, audited and including footnote disclosure if available, but including not less than a balance sheet as of the end of a fiscal year ending not more than 16 months before the date of payment, an income statement for that year, a statement of changes in shareholders' equity for that year and the latest available interim financial statements, if any.
180.1325(2)(b)
(b) A statement of the corporation's estimate of the fair value of the shares.
180.1325(2)(d)
(d) A statement of the dissenter's right to demand payment under
s. 180.1328 if the dissenter is dissatisfied with the payment.
180.1325 History
History: 1989 a. 303.
180.1326
180.1326
Failure to take action. 180.1326(1)
(1) If an issuer corporation does not effectuate the corporate action within 60 days after the date set under
s. 180.1322 for demanding payment, the issuer corporation shall return the deposited certificates and release the transfer restrictions imposed on uncertificated shares.
180.1326(2)
(2) If after returning deposited certificates and releasing transfer restrictions, the issuer corporation effectuates the corporate action, the corporation shall deliver a new dissenters' notice under
s. 180.1322 and repeat the payment demand procedure.
180.1326 History
History: 1989 a. 303.
180.1327
180.1327
After-acquired shares. 180.1327(1)
(1) A corporation may elect to withhold payment required by
s. 180.1325 from a dissenter unless the dissenter was the beneficial owner of the shares before the date specified in the dissenters' notice under
s. 180.1322 (2) (c) as the date of the first announcement to news media or to shareholders of the terms of the proposed corporate action.
180.1327(2)
(2) To the extent that the corporation elects to withhold payment under
sub. (1) after effectuating the corporate action, it shall estimate the fair value of the shares, plus accrued interest, and shall pay this amount to each dissenter who agrees to accept it in full satisfaction of his or her demand. The corporation shall send with its offer a statement of its estimate of the fair value of the shares, an explanation of how the interest was calculated, and a statement of the dissenter's right to demand payment under
s. 180.1328 if the dissenter is dissatisfied with the offer.
180.1327 History
History: 1989 a. 303.
180.1328
180.1328
Procedure if dissenter dissatisfied with payment or offer. 180.1328(1)(1) A dissenter may, in the manner provided in
sub. (2), notify the corporation of the dissenter's estimate of the fair value of his or her shares and amount of interest due, and demand payment of his or her estimate, less any payment received under
s. 180.1325, or reject the offer under
s. 180.1327 and demand payment of the fair value of his or her shares and interest due, if any of the following applies:
180.1328(1)(a)
(a) The dissenter believes that the amount paid under
s. 180.1325 or offered under
s. 180.1327 is less than the fair value of his or her shares or that the interest due is incorrectly calculated.
180.1328(1)(c)
(c) The issuer corporation, having failed to effectuate the corporate action, does not return the deposited certificates or release the transfer restrictions imposed on uncertificated shares within 60 days after the date set under
s. 180.1322 for demanding payment.
180.1328(2)
(2) A dissenter waives his or her right to demand payment under this section unless the dissenter notifies the corporation of his or her demand under
sub. (1) in writing within 30 days after the corporation made or offered payment for his or her shares. The notice shall comply with
s. 180.0141.
180.1328 History
History: 1989 a. 303.
180.1328 Annotation
When payment is made by check, the payment date under sub. (2) is the date the payee receives the check. Kohler Co. v. Sogen International Fund, Inc. 2000 WI App 60,
233 Wis. 2d 592,
608 N.W.2d 746,
99-0960.
180.1330(1)(1) If a demand for payment under
s. 180.1328 remains unsettled, the corporation shall bring a special proceeding within 60 days after receiving the payment demand under
s. 180.1328 and petition the court to determine the fair value of the shares and accrued interest. If the corporation does not bring the special proceeding within the 60-day period, it shall pay each dissenter whose demand remains unsettled the amount demanded.
180.1330(2)
(2) The corporation shall bring the special proceeding in the circuit court for the county where its principal office or, if none in this state, its registered office is located. If the corporation is a foreign corporation without a registered office in this state, it shall bring the special proceeding in the county in this state in which was located the registered office of the issuer corporation that merged with or whose shares were acquired by the foreign corporation.
180.1330(3)
(3) The corporation shall make all dissenters, whether or not residents of this state, whose demands remain unsettled parties to the special proceeding. Each party to the special proceeding shall be served with a copy of the petition as provided in
s. 801.14.
180.1330(4)
(4) The jurisdiction of the court in which the special proceeding is brought under
sub. (2) is plenary and exclusive. The court may appoint one or more persons as appraisers to receive evidence and recommend decision on the question of fair value. An appraiser has the power described in the order appointing him or her or in any amendment to the order. The dissenters are entitled to the same discovery rights as parties in other civil proceedings.
180.1330(5)
(5) Each dissenter made a party to the special proceeding is entitled to judgment for any of the following:
180.1330(5)(a)
(a) The amount, if any, by which the court finds the fair value of his or her shares, plus interest, exceeds the amount paid by the corporation.
180.1330(5)(b)
(b) The fair value, plus accrued interest, of his or her shares acquired on or after the date specified in the dissenter's notice under
s. 180.1322 (2) (c), for which the corporation elected to withhold payment under
s. 180.1327.
180.1330 History
History: 1989 a. 303.
180.1330 Annotation
Because this section does not provide for different procedures, all procedural mechanisms under chs. 801 to 847 are available in an action under this section. Kohler Co. v. Sogen International Fund, Inc. 2000 WI App 60,
233 Wis. 2d 592,
608 N.W.2d 746,
99-0960.
180.1330 Annotation
The exclusive, statutory remedy of an appraisal proceeding pursuant to directives of the statute falls within the contractual relationship between stockholder and corporation. However, the appraisal action is nonetheless a judicial action to enforce property rights established by state law. The statute-based forum selection provision, therefore offends the same federal law principle as would any law designating a Wisconsin circuit court as the exclusive jurisdiction for or precluding removal of litigation to enforce personal or property rights. Whenever a general rule as to property or personal rights, or injuries to either, is established by state legislation, its enforcement by a federal court in a case between proper parties is a matter of course, and the jurisdiction of the court, in such case, is not subject to state limitation. Albert Trostel & Sons Co. v. Notz,
536 F. Supp. 2d 969 (2008).
180.1331
180.1331
Court costs and counsel fees. 180.1331(1)(a)(a) Notwithstanding
ss. 814.01 to
814.04, the court in a special proceeding brought under
s. 180.1330 shall determine all costs of the proceeding, including the reasonable compensation and expenses of appraisers appointed by the court and shall assess the costs against the corporation, except as provided in
par. (b).
180.1331(1)(b)
(b) Notwithstanding
ss. 814.01 and
814.04, the court may assess costs against all or some of the dissenters, in amounts that the court finds to be equitable, to the extent that the court finds the dissenters acted arbitrarily, vexatiously or not in good faith in demanding payment under
s. 180.1328.
180.1331(2)
(2) The parties shall bear their own expenses of the proceeding, except that, notwithstanding
ss. 814.01 to
814.04, the court may also assess the fees and expenses of counsel and experts for the respective parties, in amounts that the court finds to be equitable, as follows:
180.1331(2)(a)
(a) Against the corporation and in favor of any dissenter if the court finds that the corporation did not substantially comply with
ss. 180.1320 to
180.1328.
180.1331(2)(b)
(b) Against the corporation or against a dissenter, in favor of any other party, if the court finds that the party against whom the fees and expenses are assessed acted arbitrarily, vexatiously or not in good faith with respect to the rights provided by this chapter.
180.1331(3)
(3) Notwithstanding
ss. 814.01 to
814.04, if the court finds that the services of counsel and experts for any dissenter were of substantial benefit to other dissenters similarly situated, the court may award to these counsel and experts reasonable fees to be paid out of the amounts awarded the dissenters who were benefited.
180.1331 History
History: 1989 a. 303.
DISSOLUTION
180.1401
180.1401
Dissolution before issuance of shares. 180.1401(1)(1) The incorporators or the board of directors of a corporation that has not issued shares may authorize the dissolution of the corporation.
180.1401(2)
(2) At any time after dissolution is authorized under
sub. (1), the corporation may dissolve by delivering to the department for filing articles of dissolution that include all of the following:
