Chapter 180

180.0743 180.0743 Stay of proceedings. If the domestic corporation or foreign corporation commences an inquiry into the allegations made in the demand or complaint, the court may stay any derivative proceeding for the period that the court considers appropriate.

180.0743 History History: 1989 a. 303; 1991 a. 16.

180.0744 180.0744 Dismissal.

180.0744(1) (1) The court shall dismiss a derivative proceeding on motion by the corporation if the court finds, subject to the burden of proof assigned under sub. (5) or (6), that one of the groups specified in sub. (2) or (6) has determined, acting in good faith after conducting a reasonable inquiry upon which its conclusions are based, that maintenance of the derivative proceeding is not in the best interests of the corporation.

180.0744(2) (2) Unless a panel is appointed under sub. (6), the determination in sub. (1) shall be made by any of the following:

180.0744(2)(a) (a) A majority vote of independent directors present at a meeting of the board of directors if the independent directors constitute a quorum.

180.0744(2)(b) (b) A majority vote of a committee consisting of 2 or more independent directors appointed by majority vote of independent directors present at a meeting of the board of directors, whether or not the voting, independent directors constitute a quorum.

180.0744(3) (3) Whether a director is independent for purposes of this section may not be determined solely on the basis of any one or more of the following factors:

180.0744(3)(a) (a) The nomination or election of the director by persons who are defendants in the derivative proceeding or against whom action is demanded.

180.0744(3)(b) (b) The naming of the director as a defendant in the derivative proceeding or as a person against whom action is demanded.

180.0744(3)(c) (c) The approval by the director of the act being challenged in the derivative proceeding or demand if the act resulted in no personal benefit to the director.

180.0744(4) (4) If a derivative proceeding is commenced after a determination was made rejecting a demand by a shareholder or beneficial owner, the complaint shall allege with particularity facts establishing any of the following:

180.0744(4)(a) (a) That a majority of the board of directors did not consist of independent directors at the time that the determination was made.

180.0744(4)(b) (b) That the requirements of sub. (1) have not been met.

180.0744(5) (5) If a majority of the board of directors did not consist of independent directors at the time that the determination rejecting a demand was made, the corporation shall have the burden of proving that the requirements of sub. (1) have been met. If a majority of the board of directors consisted of independent directors at the time that the determination was made, the shareholder or beneficial owner shall have the burden of proving that the requirements of sub. (1) have not been met.

180.0744(6) (6) Upon motion by the corporation, the court may appoint a panel of one or more independent persons to determine whether maintenance of the derivative proceeding is in the best interests of the corporation. If a panel is appointed under this subsection, the shareholder or beneficial owner shall have the burden of proving that the requirements of sub. (1) have not been met.

180.0744 History History: 1991 a. 16, 173.

180.0744 Annotation A special litigation committee formed under sub. (2) (b) shall be examined carefully by a circuit court to determine whether its members are independent. The test is whether a committee member has a relationship with a defendant or the corporation that would be reasonably expected to affect the member’s judgment with respect to litigation in issue. Einhorn v. Culea, 2000 WI 65, 235 Wis. 2d 646, 612 N.W.2d 78, 97-3592.

180.0745 180.0745 Discontinuance or settlement. A derivative proceeding may not be discontinued or settled without the court’s approval. If the court determines that a proposed discontinuance or settlement will substantially affect the interests of the beneficial owners, the shareholders or a class of shareholders of the domestic corporation or foreign corporation, the court shall direct that notice be given to the shareholders and beneficial owners affected.

180.0745 History History: 1989 a. 303.

180.0746 180.0746 Payment of expenses. On termination of the derivative proceeding, the court may do any of the following:

180.0746(1) (1) Notwithstanding s. 814.04 (1), order the domestic corporation or foreign corporation to pay the plaintiff’s reasonable expenses, including attorney fees, incurred in the derivative proceeding by the shareholder or beneficial owner who commenced or maintained the derivative proceeding if the court finds that the derivative proceeding has resulted in a substantial benefit to the domestic corporation or foreign corporation.

180.0746(2) (2) Order the shareholder or beneficial owner who commenced or maintained the derivative proceeding to pay any defendant’s reasonable expenses, including attorney fees, notwithstanding s. 814.04 (1), incurred in defending the derivative proceeding if it finds that the derivative proceeding was commenced or maintained without reasonable cause or for an improper purpose.

180.0746 History History: 1989 a. 303; 1991 a. 16.

180.0747 180.0747 Applicability to foreign corporations. In any derivative proceeding in the right of a foreign corporation, the matters covered by ss. 180.0741, 180.0742 and 180.0744 shall be governed by the laws of the jurisdiction of incorporation of the foreign corporation.

180.0747 History History: 1989 a. 303; 1991 a. 16.

subch. VIII of ch. 180 SUBCHAPTER VIII

DIRECTORS AND OFFICERS

180.0801 180.0801 Requirement for and duties of board of directors.

180.0801(1) (1) Except as provided in s. 180.1821, a corporation shall have a board of directors.

180.0801(2) (2) All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation managed under the direction of, its board of directors, subject to any limitation set forth in the articles of incorporation.

180.0801 History History: 1989 a. 303.

180.0802 180.0802 Qualifications of directors. The articles of incorporation or bylaws may prescribe qualifications for directors. A director need not be a resident of this state or a shareholder of the corporation unless the articles of incorporation or bylaws so prescribe.

180.0802 History History: 1989 a. 303.

180.0803 180.0803 Number and election of directors.

180.0803(1) (1) A board of directors shall consist of one or more natural persons, with the number specified in or fixed in accordance with the articles of incorporation or bylaws.

180.0803(2) (2) The number of directors may be increased or, subject to s. 180.0805 (2), decreased from time to time by amendment to, or in the manner provided in, the articles of incorporation or the bylaws.

180.0803(3) (3) Directors shall be elected at the first annual shareholders’ meeting and at each annual meeting thereafter unless their terms are staggered under s. 180.0806.

180.0803 History History: 1989 a. 303.

180.0804 180.0804 Election of directors by certain classes of shareholders. If the articles of incorporation authorize dividing the shares into classes, the articles of incorporation may also authorize the election of all or a specified number of directors by the holders of one or more authorized classes of shares. A class or classes of shares entitled to elect one or more directors shall be a separate voting group for purposes of the election of directors.

180.0804 History History: 1989 a. 303.

180.0805 180.0805 Terms of directors generally.

180.0805(1) (1) The terms of the directors of a corporation, including the initial directors, expire at the next annual shareholders’ meeting unless their terms are staggered under s. 180.0806.

180.0805(2) (2) A decrease in the number of directors may not shorten an incumbent director’s term.

180.0805(3) (3) Despite the expiration of a director’s term, the director shall continue to serve, subject to ss. 180.0807, 180.0808 and 180.0809, until his or her successor is elected and, if necessary, qualifies or until there is a decrease in the number of directors.

180.0805 History History: 1989 a. 303.

180.0806 180.0806 Staggered terms of directors. The articles of incorporation or the bylaws, if the articles of incorporation so provide, may provide for staggering the terms of the directors by dividing the total number of directors into 2 or 3 groups. In that event, the terms of directors in the first group expire at the first annual shareholders’ meeting after their election, the terms of the 2nd group expire at the 2nd annual shareholders’ meeting after their election, and the terms of the 3rd group, if any, expire at the 3rd annual shareholders’ meeting after their election. At each annual shareholders’ meeting held thereafter, the number of directors equal to the number of the group whose term expires at the time of the meeting shall be chosen for a term of 2 years, if there are 2 groups, or a term of 3 years, if there are 3 groups.

180.0806 History History: 1989 a. 303.

180.0807 180.0807 Resignation of directors.

180.0807(1) (1) A director may resign at any time by delivering written notice that complies with s. 180.0141 to the board of directors, to the chairperson of the board of directors or to the corporation.

180.0807(2) (2) A resignation is effective when the notice is delivered unless the notice specifies a later effective date.

180.0807 History History: 1989 a. 303.

180.0808 180.0808 Removal of directors by shareholders.

180.0808(1) (1) The shareholders may remove one or more directors with or without cause unless the articles of incorporation or bylaws provide that directors may be removed only for cause.

180.0808(2) (2) If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove that director.

180.0808(3) (3) If cumulative voting is authorized under s. 180.0728, the shareholders may not remove a director if the number of votes sufficient to elect the director under cumulative voting is voted against his or her removal. If cumulative voting is not authorized under s. 180.0728, the shareholders may remove a director only if the number of votes cast to remove the director exceeds the number of votes cast not to remove him or her, unless the articles of incorporation or bylaws adopted under authority granted in the articles of incorporation provide for a greater voting requirement under s. 180.0727 (1).

180.0808(4) (4) A director may be removed by the shareholders only at a meeting called for the purpose of removing the director, and the meeting notice shall state that the purpose, or one of the purposes, of the meeting is removal of the director.

180.0808 History History: 1989 a. 303; 1991 a. 16.

180.0809 180.0809 Removal of directors by judicial proceeding.

180.0809(1) (1) The circuit court for the county where a corporation’s principal office or, if none in this state, its registered office is located may remove a director of the corporation from office in a proceeding brought either by the corporation or by its shareholders holding at least 10 percent of the outstanding shares of any class, if the court finds all of the following:

180.0809(1)(a) (a) That the director engaged in fraudulent or dishonest conduct, or gross abuse of authority or discretion, with respect to the corporation.

180.0809(1)(b) (b) That removal is in the best interest of the corporation.

180.0809(2) (2) The court that removes a director may bar the director from reelection for a period prescribed by the court.

180.0809(3) (3) If shareholders bring a proceeding under sub. (1), they shall make the corporation a party defendant.

180.0809 History History: 1989 a. 303.

180.0810 180.0810 Vacancy on board.

180.0810(1) (1) Unless the articles of incorporation provide otherwise, and except as provided in sub. (2), if a vacancy occurs on the board of directors, including a vacancy resulting from an increase in the number of directors, the vacancy may be filled by any of the following:

180.0810(1)(a) (a) The shareholders.

180.0810(1)(b) (b) The board of directors.

180.0810(1)(c) (c) If the directors remaining in office constitute fewer than a quorum of the board, the directors, by the affirmative vote of a majority of all directors remaining in office.

180.0810(2) (2) If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group may vote to fill the vacancy if it is filled by the shareholders, and only the remaining directors elected by that voting group may vote to fill the vacancy if it is filled by the directors.

180.0810(3) (3) A vacancy that will occur at a specific later date, because of a resignation effective at a later date under s. 180.0807 (2) or otherwise, may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs.

180.0810 History History: 1989 a. 303.

180.0811 180.0811 Compensation of directors. Unless the articles of incorporation or bylaws provide otherwise, the board of directors, irrespective of any personal interest of any of its members, may fix the compensation of directors.

180.0811 History History: 1989 a. 303.

180.0820 180.0820 Meetings.

180.0820(1) (1) The board of directors may hold regular or special meetings in or outside this state.

180.0820(2) (2) 

180.0820(2)(a) (a) Unless the articles of incorporation or bylaws provide otherwise, the board of directors may permit any or all directors to participate in a regular or special meeting of the board of directors by, or to conduct the meeting through the use of, any means of communication by which any of the following occurs:

180.0820(2)(a)1. 1. All participating directors may simultaneously hear each other during the meeting.

180.0820(2)(a)2. 2. All communication during the meeting is immediately transmitted to each participating director, and each participating director is able to immediately send messages to all other participating directors.

180.0820(2)(b) (b) If a meeting will be conducted through the use of any means described in par. (a), all participating directors shall be informed that a meeting is taking place at which official business may be transacted. A director participating in a meeting by any means described in par. (a) is deemed to be present in person at the meeting.

180.0820(3) (3) If requested by a director, minutes of any regular or special meeting shall be prepared and distributed to each director.

180.0820 History History: 1989 a. 303; 1991 a. 16.

180.0820 Note NOTE: See s. 180.0825 (4) for applicability of ss. 180.0820 to 180.0823 to committees.

180.0821 180.0821 Action without meeting.

180.0821(1) (1) Unless the articles of incorporation or bylaws provide otherwise, action required or permitted by this chapter to be taken at a board of directors’ meeting may be taken without a meeting if the action is taken by all members of the board. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and retained by the corporation.

180.0821(2) (2) Action taken under this section is effective when the last director signs the consent, unless the consent specifies a different effective date.

180.0821(3) (3) A consent signed under this section has the effect of a unanimous vote taken at a meeting at which all directors were present, and may be described as such in any document.