180.1104(1)
(1) A parent corporation owning at least 90 percent of the outstanding shares of each class of a subsidiary corporation or at least 90 percent of the outstanding interests of each class of any other subsidiary business entity may merge the subsidiary into the parent or the parent into the subsidiary without approval of the shareholders or other owners of the subsidiary and, if the conditions specified in
s. 180.1302 (1) (a) 3. a. to
d. are satisfied, without approval of the shareholders of the parent.
180.1104(2)
(2) The board of directors of the parent corporation shall adopt a plan of merger that sets forth all of the following:
180.1104(2)(b)
(b) The manner and basis of converting the shares or other interests of the subsidiary or parent into shares, interests, obligations, or other securities of the surviving business entity or any other business entity or into cash or other property in whole or part.
180.1104(3)
(3) The parent shall mail a copy or summary of the plan of merger to each shareholder or other owner of the merging business entity who does not waive the mailing requirement in writing.
180.1104(4)
(4) The parent may not deliver articles of merger to the department for filing until at least 10 days after the date on which it mailed a copy of the plan of merger to each shareholder or other owner of the merging business entity who did not waive the mailing requirement.
180.1104(5)
(5) Articles of merger under this section may not contain amendments to the articles of incorporation of the surviving business entity, except for amendments enumerated in
s. 180.1002 or otherwise not requiring the approval of the shareholders or other owners of the entity.
180.11045
180.11045
Merger of indirect wholly owned subsidiary or parent. 180.11045(1)(a)
(a) “Holding company" means a corporation that issues shares under
sub. (2) (b) and that, during the period beginning with its incorporation and ending with the effective time of a merger under this section, was at all times a wholly owned subsidiary of the parent corporation that is party to the merger.
180.11045(1)(b)
(b) “Indirect wholly owned subsidiary" means any of the following:
180.11045(1)(b)1.
1. A corporation, all of the outstanding shares of each class of which are, prior to the effective time of a merger under this section, owned by a parent corporation indirectly through one or more business entities.
180.11045(1)(b)2.
2. A limited liability company organized under
ch. 183, all of the outstanding interests of each class of which are, prior to the effective time of a merger under this section, owned by a parent corporation indirectly through one or more business entities.
180.11045(1)(c)
(c) “Organizational documents" means, when used in reference to a corporation, the corporation's articles of incorporation and bylaws and, when used in reference to a limited liability company, the limited liability company's operating agreement and articles of organization.
180.11045(1)(d)
(d) “Parent corporation" means a corporation owning, prior to the effective time of a merger under this section, all of the outstanding shares of each class of another corporation or all of the outstanding interests of each class of another business entity.
180.11045(1)(e)
(e) “Surviving entity" means the limited liability company or corporation, other than the holding company, surviving a merger under
sub. (2).
180.11045(1)(f)1.
1. A corporation, all of the outstanding shares of each class of which are owned by a corporation indirectly through one or more business entities or directly.
180.11045(1)(f)2.
2. A limited liability company organized under
ch. 183, all of the outstanding interests of each class of which are owned by a corporation indirectly through one or more business entities or directly.
180.11045(2)
(2) Merger authorized. Unless the articles of incorporation of the parent corporation specifically provide otherwise, or the parent corporation is a statutory close corporation under
ss. 180.1801 to
180.1837, a parent corporation may merge with or into one of its indirect wholly owned subsidiaries pursuant to
s. 180.1101 without approval of the shareholders of the parent corporation or the shareholders or members of the indirect wholly owned subsidiary if all of the following conditions are satisfied:
180.11045(2)(a)
(a) The parent corporation and the indirect wholly owned subsidiary are the only parties to the merger.
180.11045(2)(b)
(b) Each share or other interest of the parent corporation outstanding immediately prior to the effective time of the merger is converted in the merger into a share or equal interest of a corporation that was a wholly owned subsidiary of the parent corporation immediately prior to the effective time of the merger having the same designation, preferences, limitations, and relative rights as the share or other interest of the parent corporation outstanding immediately prior to the effective time of the merger.
180.11045(2)(c)
(c) Except as otherwise provided in this paragraph, immediately following the effective time of the merger, the organizational documents of the holding company issuing shares in the merger pursuant to
sub. (2) (b) contain provisions identical to the organizational documents of the parent corporation immediately prior to the effective time of the merger. This requirement does not apply to provisions regarding the incorporator or incorporators, the corporate name, the registered office and agent, and provisions that are subject to amendment under
s. 180.1002. To the extent that the 2nd sentence of
s. 180.0852 applied to the parent corporation immediately prior to the effective time of the merger, the organizational documents of the holding company immediately following the effective time of the merger shall contain provisions implementing that sentence. If
s. 180.1706 (2) and
(3) applies to the parent corporation, pursuant to
s. 180.1706 (1), immediately prior to the effective time of the merger, the articles of incorporation of the holding company immediately following the effective time of the merger shall contain provisions implementing
s. 180.1706 (2) and
(3).
180.11045(2)(d)
(d) Immediately following the effective time of the merger, the surviving entity is a wholly owned subsidiary of the holding company.
180.11045(2)(e)
(e) The directors of the parent corporation immediately prior to the effective time of the merger are the directors of the holding company immediately following the effective time of the merger.
180.11045(2)(f)
(f) Except as otherwise provided in this paragraph, the organizational documents of the surviving entity immediately following the effective time of the merger contain provisions identical to the organizational documents of the parent corporation immediately prior to the effective time of the merger. With respect to a surviving entity that is a corporation, this requirement does not apply to provisions regarding the incorporator or incorporators; the corporate name; the registered office and agent; or provisions that are subject to amendment under
s. 180.1002 or any other law permitting amendment of the articles of incorporation without approval of the shareholders. With respect to a surviving entity that is a limited liability company, this requirement does not apply to provisions regarding the organizer or organizers; the entity name; the registered office and agent; references to members rather than shareholders; references to interests, units, or similar terms rather than shares; references to managers rather than directors; or provisions that are subject to amendment under any law permitting amendment of the operating agreement without approval of the members. The organizational documents of the surviving entity immediately following the effective time of the merger may specify a reduced number of classes and shares or other interests that the surviving entity is authorized to issue. To the extent that the 2nd sentence of
s. 180.0852 applied to the parent corporation immediately prior to the effective time of the merger, the organizational documents of the surviving entity immediately following the effective time of the merger shall contain provisions implementing that sentence. If
s. 180.1706 (2) and
(3) applies to the parent corporation, pursuant to
s. 180.1706 (1), immediately prior to the effective time of the merger, the organizational documents of the surviving entity immediately following the effective time of the merger shall contain provisions implementing
s. 180.1706 (2) and
(3). The organizational documents of the surviving entity immediately following the effective time of the merger shall contain provisions that specifically refer to this paragraph and that require all of the following:
180.11045(2)(f)1.
1. Any act, other than the election or removal of directors or managers of the surviving entity, for which approval of the shareholders or members of the surviving entity is required under this chapter,
ch. 183, or the surviving entity's organizational documents may be accomplished only with the additional approval of the shareholders of the holding company or any successor to the holding company, by the same vote as is required for approval of the shareholders or members of the surviving entity under this chapter,
ch. 183, or the surviving entity's organizational documents.
180.11045(2)(f)2.
2. If the surviving entity is a limited liability company, any act, other than the election or removal of managers of the surviving entity, for which approval of the shareholders of the surviving entity would be required under this chapter if the surviving entity were a corporation may be accomplished only with the additional approval of the shareholders of the holding company or any successor to the holding company, by the same vote as would be required for approval of the shareholders under this chapter if the surviving entity were a corporation.
180.11045(2)(f)3.
3. If the surviving entity is a limited liability company, any amendment of the organizational documents of the surviving entity that would be required under this chapter to be included in the articles of incorporation of the surviving entity if the surviving entity were a corporation, other than an amendment specified in
s. 180.1002, may be accomplished only with the additional approval of the shareholders of the holding company or any successor to the holding company, by the same vote as would be required for approval of the shareholders under this chapter if the surviving entity were a corporation.
180.11045(2)(f)4.
4. If the surviving entity is a limited liability company, the affairs of the surviving entity are managed by or under the direction of a group of managers consisting of individuals who have the same fiduciary duties toward the surviving entity and its members as the directors of a corporation have toward the corporation and its shareholders and who are liable for breach of their duties to the same extent as directors of a corporation.
180.11045(2)(g)
(g) In the opinion of the board of directors of the parent corporation, the shareholders of the parent corporation do not have a gain or loss under the Internal Revenue Code as a result of the merger.
180.11045(3)
(3) Articles of merger. The surviving entity shall include in the articles of merger under
s. 180.1105 a statement that the merger was approved in accordance with this section and that the requirements of
sub. (2) have been satisfied.
180.11045(4)
(4) Effect of merger. All of the following occur when a merger under
sub. (2) takes effect:
180.11045(4)(a)
(a) To the extent that the restrictions of
s. 180.1131,
180.1141, or
180.1150 applied to the parent corporation and its shareholders immediately prior to the effective time of the merger, the restrictions apply to the holding company and its shareholders immediately following the effective time of the merger to the same extent as if the holding company were the parent corporation as the corporation existed immediately prior to the effective time of the merger. For purposes of
ss. 180.1130,
180.1132,
180.1141,
180.1142,
180.1143, and
180.1150, the shares of the holding company acquired in the merger are deemed to have been acquired at the time and for the price and form of consideration that the shares of the parent corporation that were converted in the merger were acquired.
180.11045(4)(b)
(b) If immediately prior to the effective time of the merger
s. 180.1141,
180.1142, or
180.1150 did not apply to a shareholder of the parent corporation, the section does not apply to the shareholder as a shareholder of the holding company solely by reason of the merger.
180.11045(4)(c)
(c) If the corporate name of the holding company immediately following the effective time of the merger is the same as the corporate name of the parent corporation immediately prior to the effective time of the merger, the shares of the holding company into which the shares of the parent corporation are converted in the merger are represented by the certificates that previously represented shares of the parent corporation.
180.11045(4)(d)
(d) A shareholder of the parent corporation immediately prior to the effective time of the merger retains any right that the shareholder had immediately prior to the effective time of the merger to institute or maintain a derivative proceeding in the right of the parent corporation.
180.11045(4)(e)
(e) No act of the surviving entity that requires the additional approval of the shareholders of the holding company or any successor company pursuant to
sub. (2) (f) shall give rise to dissenters' rights under
ss. 180.1301 to
180.1331 for the shareholders or the beneficial shareholders of the holding company or any successor to the holding company.
180.11045(4)(f)
(f) To the extent that shares of the parent corporation immediately prior to the effective time of the merger constituted shares of a preexisting class, the shares of the holding company immediately following the effective time of the merger constitute shares of a preexisting class to the same extent as if the holding company were the parent corporation as the parent corporation existed immediately prior to the effective time of the merger. Shares or interests of the surviving entity do not constitute shares of a preexisting class for purposes of
s. 180.1705. For purposes of
s. 180.1707, to the extent that shares of the parent corporation immediately prior to the effective time of the merger constituted shares of a preexisting class, the shares or interests of the surviving entity constitute shares of a preexisting class to the same extent as if the surviving entity were the parent corporation as the parent corporation existed immediately prior to the effective time of the merger.
180.11045(4)(g)
(g) To the extent that the provisions of
s. 180.1706 (4) applied to the parent corporation immediately prior to the effective time of the merger, the provisions apply to the holding company immediately following the effective time of the merger to the same extent as if the holding company were the parent corporation as the corporation existed immediately prior to the effective time of the merger. To the extent that the provisions of
s. 180.1706 (4) applied to the parent corporation immediately prior to the effective time of the merger, if the surviving entity is a corporation, the provisions apply to the surviving entity immediately following the effective time of the merger to the same extent as if the surviving entity were the parent corporation as the corporation existed immediately prior to the effective time of the merger. To the extent that the provisions of
s. 180.1706 (4) applied to the parent corporation immediately prior to the effective time of the merger, if the surviving entity is a limited liability company, the provisions apply to the corresponding provisions of the organizational documents of the surviving entity immediately following the effective time of the merger to the same extent as if the surviving entity were the parent corporation as the corporation existed immediately prior to the effective time of the merger.
180.11045(4)(h)
(h) To the extent that immediately prior to the effective time of the merger shareholders of the parent corporation had rights or were subject to obligations or restrictions of the types referred to in
s. 180.0627 (2),
180.0630 (4),
180.0722 (2),
180.0730 (1), or
180.0731 (1), the rights, obligations, or restrictions apply to the shareholders of the holding company immediately following the effective time of the merger to the same extent as if the holding company were the parent corporation as the corporation existed immediately prior to the effective time of the merger, unless the agreement, waiver, proxy, or trust establishing the rights, obligations, or restrictions specifies otherwise.
180.11045 History
History: 2005 a. 476.
180.1105
180.1105
Articles of merger or share exchange. 180.1105(1)(1) Except as provided in
s. 180.1104 (4), after a plan of merger or share exchange is approved by the shareholders of the corporation, or adopted by the board of directors if shareholder approval is not required, and by each other business entity that is a party to the merger in the manner required by the laws applicable to the business entity, the surviving or acquiring business entity shall deliver to the department for filing articles of merger or share exchange setting forth all of the following:
180.1105(1)(am)
(am) The effective date and time of the merger or share exchange, if the merger or share exchange is to take effect at a time other than the close of business on the date of filing the articles of merger, as provided under
s. 180.0123.
180.1105(1)(bm)
(bm) The name and state of incorporation of each corporation that is a party to the merger or share exchange.
180.1105(1)(cm)
(cm) A statement that a plan of merger or share exchange has been approved and adopted by each corporation that is a party to the merger or share exchange as required under
s. 180.1103 or
180.1104, as applicable.
180.1105(1)(e)
(e) In the case of a merger, any amendments in the articles of incorporation of the surviving corporation that are intended by the parties to the merger to take effect upon the merger or, if there are no such amendments, a statement that the articles of incorporation of the surviving corporation or another corporation that is a party to the merger will be the articles of incorporation of the surviving corporation.
180.1105(1)(f)
(f) A statement that the executed plan of merger or share exchange is on file at the principal place of business of the surviving or acquiring corporation.
180.1105(1)(g)
(g) A statement that the surviving or acquiring corporation will provide a copy of the plan of merger or share exchange, upon request and without cost, to any shareholder of a corporation that was a party to the merger or share exchange or, upon payment to the surviving or acquiring corporation of an amount equal to the cost of producing the copy, to any other interested person.
180.1105(1)(h)
(h) In the case of a merger, a statement indicating whether a business entity that merged with or into the surviving entity in the merger has a fee simple ownership interest in any Wisconsin real estate.
180.1105(1)(i)
(i) Other provisions relating to the merger, as determined by the surviving business entity.
180.1105(2)
(2) A merger or share exchange takes effect upon the effective date of the articles of merger or share exchange.
180.1106
180.1106
Effect of merger or share exchange. 180.1106(1)
(1) All of the following occur when a merger takes effect:
180.1106(1)(a)
(a) Every other business entity that is party to the merger merges into the surviving business entity, and the separate existence of every business entity that is a party to the merger, except the surviving business entity, ceases.
180.1106(1)(am)1.1. If, under the laws applicable to a business entity that is a party to the merger, 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 liable for the debts and obligations of the 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.
180.1106(1)(am)2.
2. If, under the laws applicable to the surviving business entity, one or more of the owners thereof is liable for the debts and obligations of such business entity, the owner or owners of a business entity that is party to the merger, other than the surviving business entity, who become subject to such laws shall be liable for the debts and obligations of the surviving business entity to the extent provided in such laws, but only for such debts and obligations accrued after the merger. The owner or owners of the surviving business entity prior to the merger shall continue to be liable for the debts and obligations of the surviving business entity to the extent provided in
subd. 1.
180.1106(1)(am)3.
3. This paragraph does not affect liability under any taxation laws.
180.1106(1)(b)
(b) The title to all property owned by each business entity that is party to the merger is vested in the surviving business entity without reversion or impairment.
180.1106(1)(c)
(c) The surviving business entity has all liabilities of each business entity that is party to the merger.
180.1106(1)(d)
(d) A civil, criminal, administrative, or investigatory proceeding pending by or against any business entity that is a party to the merger may be continued as if the merger did not occur, or the surviving business entity may be substituted in the proceeding for the business entity whose existence ceased.
180.1106(1)(e)
(e) The articles of incorporation, articles of organization, certificate of limited partnership, or other similar governing document, whichever is applicable, of the surviving business entity shall be amended to the extent provided in the plan of merger.
180.1106(1)(f)
(f) The shares or other interests of each business entity that is party to the merger that are to be converted into shares, interests, obligations, or other securities of the surviving business entity or any other business entity or into cash or other property are converted, and the former holders of the shares or interests are entitled only to the rights provided in the articles of merger or to their rights under
ss. 180.1301 to
180.1331 or otherwise under the laws applicable to each business entity that is party to the merger.
180.1106(2)
(2) When a share exchange takes effect, the shares of each acquired corporation are exchanged as provided in the plan, and the former holders of the shares are entitled only to the exchange rights provided in the articles of share exchange or to their rights under
ss. 180.1301 to
180.1331.
180.1106(3)(a)(a) When a merger or share exchange under this section takes effect, the department is the agent of any surviving foreign business entity of a merger or any acquiring foreign business entity in a share exchange, for service of process in a proceeding to enforce any obligation or the rights of dissenting shareholders or other owners of each domestic business entity that is a party to the merger or share exchange.
180.1106(3)(b)
(b) When a merger or share exchange under this section takes effect, any surviving foreign business entity of a merger or any acquiring foreign business entity in a share exchange shall promptly pay to the dissenting shareholders of each domestic corporation or dissenting owners of each other domestic business entity that is a party to the merger or share exchange the amount, if any, to which they are entitled under
ss. 180.1301 to
180.1331 or under any law applicable to such other domestic business entity.
180.1106 Annotation
Sub. (1) (d) is straightforward in its requirement that a pending claim “may be continued as if the merger did not occur." The plaintiff's judicial dissolution claim, initiated prior to a merger, alleged harm to that shareholder, not to the corporation. The statute precludes a merger from operating to strip such a claimant of the right to pursue a pending action. Notz v. Everett Smith Group, Ltd.
2009 WI 30,
316 Wis. 2d 640,
764 N.W.2d 904,
06-3156.
180.1106 Annotation
The Conveyance Glitch in the Next Economy Law. Boatwright. Wis. Law. July 2003.
180.1130(1)
(1) “Associate" of a person means any of the following:
180.1130(1)(a)
(a) An organization, other than the resident domestic corporation or a subsidiary of the resident domestic corporation, of which the person is an officer, director, manager or partner or is, directly or indirectly, the beneficial owner of 10 percent or more of a class of voting securities.
180.1130(1)(b)
(b) A trust or estate in which the person has a substantial beneficial interest or as to which the person serves as trustee or in a similar fiduciary capacity.
180.1130(1)(c)
(c) A relative or spouse of the person, or a relative of the spouse, who has the same principal residence as the person who is a director or officer of the resident domestic corporation or of an affiliate of the resident domestic corporation.
180.1130(2)
(2) “Beneficial owner" has the meaning prescribed in rule 13d-3 under the securities exchange act of 1934. A person is not a “beneficial owner" solely because of any of the following:
180.1130(2)(a)
(a) The existence of an agreement by or on behalf of the person and by or on behalf of a record or beneficial owner of securities under which the owner agrees to vote the securities in favor of a proposed merger, share exchange or sale, lease, exchange or other disposition of assets.
180.1130(2)(b)
(b) The existence of an option from, or other arrangement with, a resident domestic corporation to acquire securities of the resident domestic corporation.
180.1130(3)
(3) “Business combination" means any of the following:
180.1130(3)(a)
(a) Unless the merger or share exchange is subject to
s. 180.1104 or
s. 180.11045, does not alter the contract rights of the shares as set forth in the articles of incorporation or does not change or convert in whole or in part the outstanding shares of the resident domestic corporation, a merger or share exchange of the resident domestic corporation or a subsidiary of the resident domestic corporation with any of the following:
180.1130(3)(a)2.
2. Any other corporation, whether or not itself a significant shareholder, which is, or after the merger or share exchange would be, an affiliate of a significant shareholder that was a significant shareholder before the transaction.
180.1130(3)(b)
(b) A sale, lease, exchange or other disposition, other than a mortgage or pledge if not made to avoid the requirements of
ss. 180.1130 to
180.1134, to a significant shareholder, other than the resident domestic corporation or a subsidiary of the resident domestic corporation, or to an affiliate of the significant shareholder, of all or substantially all of the property and assets, with or without goodwill, of a resident domestic corporation, if not made in the usual and regular course of its business.
180.1130(4)
(4) “Commencement of a tender offer" has the meaning prescribed in rule 14d-2 under the securities exchange act of 1934.
