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.
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)(bm)
(bm) A statement indicating whether the business entity that is to be converted has a fee simple ownership interest in any Wisconsin real estate.
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;
2005 a. 476.
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; transfer of assets to subsidiary. 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(1)(d)
(d) Transfer any or all of its assets to one or more corporations or other entities, all of the shares or interests of which are owned by the corporation, unless the transfer is in connection with a plan or action involving the sale, exchange, or disposal of all or substantially all of the assets of the corporation and requires shareholder approval under
s. 180.1202.
180.1201(2)
(2) Unless required by the articles of incorporation, approval by the shareholders of a transaction permitted in
sub. (1) is not required.
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 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)(a)3.
3. The issuer corporation is a parent that is merged with its subsidiary under
s. 180.1104. This subdivision does not apply if all of the following are true:
180.1302(1)(a)3.a.
a. The articles of incorporation of the surviving corporation do not differ from the articles of incorporation of the parent before the merger, except for amendments specified in
s. 180.1002 (1) to
(9).
180.1302(1)(a)3.b.
b. Each shareholder of the parent whose shares were outstanding immediately before the effective time of the merger holds the same number of shares with identical designations, preferences, limitations, and relative rights, immediately after the merger.
180.1302(1)(a)3.c.
c. The number of voting shares, as defined in
s. 180.1103 (5) (a) 2., outstanding immediately after the merger, plus the number of voting shares issuable as a result of the merger, either by the conversion of securities issued pursuant to the merger or the exercise of rights or warrants issued pursuant to the merger, do not exceed by more than 20 percent the total number of voting shares of the parent outstanding immediately before the merger.
180.1302(1)(a)3.d.
d. The number of participating shares, as defined in
s. 180.1103 (5) (a) 1., outstanding immediately after the merger, plus the number of participating shares issuable as a result of the merger, either by the conversion of securities issued pursuant to the merger or the exercise of rights or warrants issued pursuant to the merger, do not exceed by more than 20 percent the total number of participating shares of the parent outstanding immediately before the merger.
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) 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 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.
