180.1022 History
History: 1989 a. 303.
MERGER, SHARE EXCHANGE, AND CONVERSION
180.1100
180.1100
Definitions. In this subchapter:
180.1100(1)
(1) “Business entity" means a domestic business entity and a foreign business entity.
180.1100 History
History: 2001 a. 44;
2015 a. 295.
180.1101(1)(1)
One or more corporations may merge with or into one or more other business entities if the board of directors of each corporation, by resolution adopted by each board, approves a plan of merger and, if required by s.
180.1103, its shareholders also approve the plan of merger, and if the merger is permitted under the applicable law of the jurisdiction that governs each other business entity that is a party to the merger and each such business entity approves the plan of merger in the manner required by the laws applicable to the business entity.
180.1101(2)
(2) The plan of merger shall set forth all of the following:
180.1101(2)(a)
(a) The name, form of business entity, and identity of the jurisdiction governing each business entity planning to merge and the name, form of business entity, and identity of the jurisdiction of the surviving business entity into which each other business entity plans to merge.
180.1101(2)(c)
(c) The manner and basis of converting the shares or other interests in each business entity that is a party to the merger 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.
180.1101(3)
(3) The plan of merger may set forth any of the following:
180.1101(3)(a)
(a) Amendments to the articles of incorporation or other similar governing document of the surviving business entity.
180.1101 History
History: 1989 a. 303;
2001 a. 44.
180.1102(1)(1)
A corporation may acquire all of the outstanding shares of one or more classes or series of another business entity if the board of directors of each corporation, by resolution adopted by each board, approves a plan of share exchange and, if required by s.
180.1103, its shareholders also approve the plan of share exchange, and if the share exchange is permitted under the applicable law of the jurisdiction that governs the other business entity and the other business entity approves the plan of share exchange in the manner required by the laws of the jurisdiction that governs the other business entity.
180.1102(2)
(2) The plan of share exchange shall set forth all of the following:
180.1102(2)(a)
(a) The name, form of business entity, and identity of the jurisdiction governing the business entity whose shares will be acquired and the name of the acquiring business entity.
180.1102(2)(c)
(c) The manner and basis of exchanging the shares or other ownership interests to be acquired for shares, obligations or other securities of the acquiring or any other business or for cash or other property in whole or part.
180.1102(3)
(3) The plan of share exchange may set forth other provisions relating to the exchange.
180.1102(4)
(4) This section does not limit the power of a corporation to acquire all or part of the shares of one or more classes or series of another corporation through a voluntary exchange or otherwise.
180.1102 History
History: 1989 a. 303;
2001 a. 44.
180.1103
180.1103
Action on plan of merger or share exchange. 180.1103(1)(1)
Submit to shareholders. After adopting and approving a plan of merger or share exchange, the board of directors of each corporation that is party to the merger, and the board of directors of the corporation whose shares will be acquired in the share exchange, shall submit the plan of merger, except as provided in sub.
(5) and s.
180.11045 (2), or share exchange for approval by its shareholders.
180.1103(2)
(2)
Meeting notice. The corporation shall notify each shareholder, whether or not entitled to vote, of the proposed shareholders' meeting in accordance with s.
180.0705, except that the notice shall be given at least 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 plan of merger or share exchange and shall contain or be accompanied by a copy or summary of the plan.
180.1103(3)
(3)
Required vote. 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 plan of merger or share exchange to be authorized shall be approved by each voting group entitled to vote separately on the plan by a majority of all the votes entitled to be cast on the plan by that voting group.
180.1103(4)
(4)
Separate voting by voting groups. Separate voting by voting groups is required on any of the following:
180.1103(4)(a)
(a) A plan of merger if the plan contains a provision that, if contained in a proposed amendment to articles of incorporation, would require action by one or more separate voting groups on the proposed amendment under s.
180.1004, except as provided in s.
180.1707.
180.1103(4)(b)
(b) A plan of share exchange by each class or series of shares included in the exchange, with each class or series constituting a separate voting group.
180.1103(5)
(5)
When shareholder approval of merger not required. 180.1103(5)(a)1.
1. “Participating shares" means shares that entitle their holders to participate, without limitation, in distributions.
180.1103(5)(a)2.
2. “Voting shares" means shares that entitle their holders to vote unconditionally in elections of directors.
180.1103(5)(b)
(b) Action by the shareholders of the surviving corporation on a plan of merger is not required if all of the following conditions are satisfied:
180.1103(5)(b)1.
1. The articles of incorporation of the surviving corporation will not differ, except for amendments enumerated in s.
180.1002, from its articles of incorporation before the merger.
180.1103(5)(b)2.
2. Each shareholder of the surviving corporation whose shares were outstanding immediately before the effective date of the merger will hold the same number of shares, with identical designations, preferences, limitations and relative rights, immediately after.
180.1103(5)(b)3.
3. The number of voting shares 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, will not exceed by more than 20 percent the total number of voting shares of the surviving corporation outstanding immediately before the merger.
180.1103(5)(b)4.
4. The number of participating shares 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, will not exceed by more than 20 percent the total number of participating shares of the surviving corporation outstanding immediately before the merger.
180.1103(6)
(6)
Merger or share exchange abandoned. After a merger or share exchange is authorized, and at any time before articles of merger or share exchange are filed, the planned merger or share exchange may be abandoned, subject to any contractual rights, without further action on the part of shareholders or other owners, in accordance with the procedure set forth in the plan of merger or share exchange or, if none is set forth, in the manner determined by the board of directors or other similar governing body of any other business entity that is a party to the merger.
180.1104
180.1104
Merger of subsidiary or parent. 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.
