Chapter 180

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.

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; 2021 a. 258.

180.1105 180.1105 Articles of merger or interest exchange.

180.1105(1) (1) Except as provided in s. 180.1104 (4), after a plan of merger or interest exchange has been approved with respect to each constituent entity in accordance with its governing law, the constituent entities shall deliver, or cause to be delivered, to the department for filing articles of merger or interest exchange setting forth all of the following:

180.1105(1)(am) (am) The effective date and time of the merger or interest exchange, if the merger or interest 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, type of entity, and governing law of each constituent entity of the merger, or, if an interest exchange, the name of the acquiring and acquired entities.

180.1105(1)(cm) (cm) In the case of a merger, a statement that a plan of merger has been approved and adopted by each constituent entity in accordance with its governing law, and, in the case of an interest exchange, a statement that a plan of interest exchange has been approved by the acquired and acquiring entities in accordance with their respective governing laws.

180.1105(1)(dm) (dm) In the case of a merger, the name, type of entity, and governing law of the surviving entity and, if the surviving entity is created by the merger, a statement to that effect, and, in the case of an interest exchange, the name, type of entity, and governing law of the acquiring entity.

180.1105(1)(e) (e) In the case of a merger, if the surviving entity preexists the merger, any amendments to its organizational documents that are to be in a public record under its governing law immediately after the merger becomes effective or, if there are no such amendments, a statement to that effect.

180.1105(1)(em) (em) In the case of a merger, if the surviving entity is to be created in the merger, any of its organizational documents under s. 180.11012 (1) (d) that are to be in a public record under its governing law or, if there are no such amendments, a statement to that effect.

180.1105(1)(er) (er) In the case of an interest exchange, any amendments to the organizational documents of the acquired or acquiring entity under s. 180.11021 (1) (a) to (e) that are to be in a public record under their respective governing laws or, if there are no such amendments, a statement to that effect.

180.1105(1)(f) (f) A statement that the executed plan of merger or interest exchange is on file at the principal place of business of the surviving or acquiring entity.

180.1105(1)(g) (g) A statement that upon request the surviving or acquiring entity will provide a copy of the plan of merger or interest exchange to any person that, in the case of a merger, is an interest holder of a constituent entity or, in the case of an interest exchange, was an interest holder of the acquired entity immediately prior to the interest exchange.

180.1105(1g) (1g) In the case of a merger, if the surviving entity is a foreign entity that will be required to obtain authorization to transact business in this state immediately after the merger and it has not previously been authorized to do so, it shall obtain such authorization.

180.1105(1m) (1m) In addition to the requirements of sub. (1), articles of merger or interest exchange may contain any other provisions relating to the merger or interest exchange, as determined by the constituent entities in accordance with the plan of merger, in the case of a merger, or the acquiring entity in accordance with the plan of interest exchange, in the case of an interest exchange.

180.1105(2) (2) A merger or interest exchange takes effect upon the effective date of the articles of merger or interest exchange.

180.1105 History History: 1989 a. 303; 1995 a. 27; 2001 a. 44; 2005 a. 476; 2021 a. 258.

180.1106 180.1106 Effect of merger or interest exchange.

180.1106(1) (1) When a merger becomes effective, all of the following apply:

180.1106(1)(a) (a) Each merging entity merges into the surviving entity, and the separate existence of every constituent entity that is a party to the merger, except the surviving entity, ceases.

180.1106(1)(am) (am)

180.1106(1)(am)1g. 1g. Except as provided in this paragraph, no interest holder shall have interest holder liability with respect to any of the constituent entities.

180.1106(1)(am)1m. 1m. If, under the governing law of the constituent entity, one or more of the interest holders thereof had interest holder liability prior to the merger with respect to the entity, such interest holder or holders shall continue to have such liability and any associated contribution or other rights to the extent provided in such governing law with respect to debts, obligations, and other liabilities of the entity that accrued during the period or periods in which such interest holder or holders had such interest holder liability.

180.1106(1)(am)2. 2. If, under the governing law of the surviving entity, one or more of the interest holders thereof will have interest holder liability after the merger with respect to the surviving entity, such interest holder or holders will have such liability and any associated contribution and other rights to the extent provided in such governing law with respect to the debts, obligations, and other liabilities of the surviving entity that accrue after the merger.

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 constituent entity is vested in the surviving entity without transfer, reversion, or impairment.

180.1106(1)(c) (c) The surviving business entity has all debts, obligations, and other liabilities of each constituent entity.

180.1106(1)(d) (d) A civil, criminal, administrative, or investigatory proceeding pending by or against any constituent entity may be continued as if the merger did not occur, or the surviving entity may be substituted in the proceeding for the constituent entity whose existence ceased.

180.1106(1)(e) (e)

180.1106(1)(e)1. 1. If the surviving entity preexists the merger, its organizational documents are amended to the extent, if any, provided in the plan of merger and, to the extent such amendments are to be reflected in a public record, as provided in the articles of merger.

180.1106(1)(e)2. 2. If the surviving entity is created in the merger, its organizational documents are as provided in the plan of merger and, to the extent such organizational documents are to be reflected in a public record, as provided in the articles of merger.

180.1106(1)(f) (f) The interests of each constituent entity that are to be converted into interests, securities, or other obligations of the surviving entity, rights to acquire such interests or securities, money, other property, or any combination of the foregoing, are converted as provided in the plan of merger, and the former interest holders of the interests are entitled only to the rights provided to them in the plan of merger or to their rights, if any, under s. 178.1161 or 179.1161, ss. 180.1301 to 180.1331, or s. 181.1180 or 183.1061 or otherwise under the governing law of the constituent entity. All other terms and conditions of the merger also take effect.

180.1106(1)(g) (g) Except as prohibited by other law or as otherwise provided in the articles and plan of merger, all of the rights, privileges, immunities, powers, and purposes of each constituent entity vest in the surviving entity.

180.1106(1m) (1m) When an interest exchange becomes effective, all of the following apply: