Chapter 180

180.11003 180.11003 Nonexclusivity. The fact that a transaction under this subchapter produces a certain result does not preclude the same result from being accomplished in any other manner permitted by law other than this subchapter.

180.11003 History History: 2021 a. 258.

180.11004 180.11004 Reference to external facts. A plan may refer to facts ascertainable outside the plan if the manner in which the facts will operate upon the plan is specified in the plan. The facts may include the occurrence of an event or a determination or action by a person, whether or not the event, determination, or action is within the control of a party to the transaction.

180.11004 History History: 2021 a. 258.

180.1101 180.1101 Merger authorized.

180.1101(1) (1) One or more domestic corporations may merge with or into one or more other constituent entities pursuant to ss. 180.1101, 180.11012, and 180.11031 to 180.1106 and a plan of merger if the merger is permitted under the governing law of each constituent entity and each constituent entity approves the plan of merger in the manner required by its governing law.

180.1101(2m) (2m) One or more other domestic or foreign entities may merge with or into a domestic corporation pursuant to ss. 180.1101, 180.11012, and 180.11031 to 180.1106 and a plan of merger if the merger is permitted under the governing law of each constituent entity and each constituent entity approves the plan of merger in the manner required by its governing law.

180.1101 History History: 1989 a. 303; 2001 a. 44; 2021 a. 258.

180.11012 180.11012 Plan of merger.

180.11012(1) (1) A plan of merger must be in a record and contain all of the following:

180.11012(1)(a) (a) As to each constituent entity, its name, type of entity, and governing law.

180.11012(1)(b) (b) The terms and conditions of the merger.

180.11012(1)(c) (c) The manner and basis of converting the interests in each constituent entity into interests, securities, or obligations of the surviving entity, rights to acquire such interests or securities, money, other property, or any combination of the foregoing.

180.11012(1)(d) (d) If the surviving entity preexists the merger, any proposed amendments to its organizational documents that are to be in a record immediately after the merger becomes effective.

180.11012(1)(e) (e) If the surviving entity is to be created in the merger, any of its organizational documents that are to be in a record immediately after the merger becomes effective.

180.11012(1)(f) (f) Any other matters required under the governing law of any constituent entity.

180.11012(2) (2) In addition to the requirements of sub. (1), a plan of merger may contain any other provision relating to the merger and not prohibited by law.

180.11012 History History: 1989 a. 303; 2001 a. 44; a. 258 ss. 240, 242, 244, 245.

180.1102 180.1102 Interest exchange authorized.

180.1102(1) (1) A domestic corporation may acquire all of one or more classes or series of interests of another constituent entity pursuant to ss. 180.1102, 180.11021, 180.11032, 180.1105, and 180.1106 and a plan of interest exchange if the interest exchange is permitted under the governing law share applicable to the corporation and the acquired entity.

180.1102(1m) (1m) All of one or more classes or series of interests of a domestic corporation may be acquired by another constituent entity pursuant to ss. 180.1102, 180.11021, 180.11032, 180.1105, and 180.1106 and a plan of interest exchange if the interest exchange is permitted under the governing law applicable to the acquiring entity and the corporation.

180.1102(2m) (2m) A domestic or foreign entity may exchange interests with a domestic corporation pursuant to ss. 180.1102, 180.11021, 180.11032, 180.1105, and 180.1106 and a plan of interest exchange if the interest exchange is permitted under the governing law of each constituent entity and each constituent entity approves the plan of interest exchange in the manner required by its governing law.

180.1102 History History: 1989 a. 303; 2001 a. 44; 2021 a. 258.

180.11021 180.11021 Plan of interest exchange.

180.11021(1) (1) The plan of interest exchange must be in a record and contain all of the following:

180.11021(1)(a) (a) As to both the acquiring and the acquired entity, its name, type of entity, and governing law.

180.11021(1)(b) (b) The terms and conditions of the exchange.

180.11021(1)(c) (c) The manner and basis of exchanging the interests to be acquired for interests, securities, or obligations of the surviving entity, rights to acquire such interests or securities, money, other property, or any combination of the foregoing.

180.11021(1)(d) (d) Any proposed amendments to the organizational documents of the acquiring or acquired entity that will take effect when the interest exchange becomes effective.

180.11021(1)(e) (e) Any other matters required under the governing law of any constituent entity.

180.11021(3) (3) In addition to the requirements of sub. (1), a plan of interest exchange may contain any other provision relating to the exchange and not prohibited by law.

180.11021(4) (4) This section does not limit the power of a corporation to acquire all or part of the interests of one or more classes or series of another constituent entity through a voluntary exchange or otherwise.

180.11021 History History: 1989 a. 303; 2001 a. 44; 2021 a. 258 ss. 249, 251 to 254.

180.11031 180.11031 Approval of merger or interest exchange; amendment; abandonment.

180.11031(1) (1) Subject to the governing law of each constituent, acquiring, or acquired entity, a plan of merger or interest exchange must be approved by a vote or consent of the board of directors of each domestic corporation that is a constituent entity and, if required by s. 180.11032 (1), its shareholders.

180.11031(2) (2) Subject to the governing law of each constituent, acquiring, or acquired entity, after a plan of merger or interest exchange is approved, and at any time before a merger or interest exchange becomes effective, the constituent entities may amend the plan of merger or interest exchange or abandon the merger or interest exchange as provided in the plan of merger or interest exchange or, except as otherwise provided in the plan of merger or interest exchange, with the same vote or consent as was required to approve the plan of merger or interest exchange.

180.11031(3) (3) If, after articles of merger or interest exchange have been delivered to the department for filing and before the merger or interest exchange becomes effective, the plan of merger or interest exchange is amended in a manner that requires an amendment to the articles of merger or interest exchange or if the merger or interest exchange is abandoned, a statement of amendment or abandonment, signed by a constituent entity, must be delivered to the department for filing before the merger or interest exchange becomes effective. When the statement of abandonment becomes effective, the merger or interest exchange is abandoned and does not become effective. The statement of amendment or abandonment must contain all of the following:

180.11031(3)(a) (a) The name of each constituent entity.

180.11031(3)(b) (b) The amendment to or the abandonment of the articles of merger or interest exchange.

180.11031(3)(c) (c) A statement that the amendment or abandonment was approved in accordance with this section.

180.11031(4) (4) In addition to approval under sub. (1), a plan of merger or interest exchange must be approved by each constituent entity that is not a domestic partnership in accordance with any requirements of its governing law.

180.11031 History History: 2021 a. 258.

180.11032 180.11032 Approval requirements and procedures applicable to domestic corporations in mergers and interest exchanges.

180.11032(1) (1) Submit to shareholders. After a plan of merger or interest exchange is approved, the board of directors of each domestic corporation that is party to the merger, and the board of directors of the domestic corporation whose shares will be acquired in the interest exchange, shall submit the plan of merger, except as provided in sub. (5) and s. 180.11045 (2), or interest exchange for approval by its shareholders.

180.11032(2) (2) Meeting notice. A domestic 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 interest exchange and shall contain or be accompanied by a copy or summary of the plan.

180.11032(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 interest 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.

180.11032(4) (4) Separate voting by voting groups. Separate voting by voting groups is required on any of the following:

180.11032(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.

180.11032(4)(b) (b) A plan of interest exchange by each class or series of shares of the domestic corporation included in the exchange, with each class or series constituting a separate voting group.

180.11032(5) (5) When shareholder approval of merger not required.

180.11032(5)(a) (a) In this subsection:

180.11032(5)(a)1. 1. “Participating shares” means shares that entitle their holders to participate, without limitation, in distributions.

180.11032(5)(a)2. 2. “Voting shares” means shares that entitle their holders to vote unconditionally in elections of directors.

180.11032(5)(b) (b) Action by the shareholders of the surviving domestic corporation on a plan of merger is not required if all of the following conditions are satisfied:

180.11032(5)(b)1. 1. The articles of incorporation of the surviving domestic corporation will not differ, except for amendments enumerated in s. 180.1002, from its articles of incorporation before the merger.

180.11032(5)(b)2. 2. Each shareholder of the surviving domestic 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.

180.11032(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 domestic corporation outstanding immediately before the merger.

180.11032(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 domestic corporation outstanding immediately before the merger.

180.11032 History History: 1989 a. 303; 1991 a. 16; 2001 a. 44; 2005 a. 476; 2021 a. 258 ss. 256 to 262, 265.

180.1104 180.1104 Merger of subsidiary or parent.

180.1104(1) (1) A domestic 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 domestic parent or the domestic 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 domestic parent.

180.1104(2) (2) The board of directors of the domestic parent corporation shall adopt a plan of merger that sets forth all of the following:

180.1104(2)(a) (a) The names of the parent and subsidiary.

180.1104(2)(b) (b) The manner and basis of converting the shares or other interests of the subsidiary or domestic 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 domestic 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 domestic 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.

180.1104 History History: 1989 a. 303; 1995 a. 27; 2001 a. 44; 2005 a. 476; 2021 a. 258.

180.11045 180.11045 Merger of indirect wholly owned subsidiary or parent.

180.11045(1) (1) Definitions. In this section:

180.11045(1)(a) (a) “Holding company” means a domestic 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) (f) “Wholly owned subsidiary” means any of the following:

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.