Chapter 180

180.1132(1)(b) (b) The consideration to be received by holders of a class or series of outstanding shares is to be in cash or in the same form as the significant shareholder has previously paid for shares of the same class or series. If the significant shareholder has paid for shares of a class of shares with varying forms of consideration, the form of consideration for the class of shares shall be either cash or the form used to acquire the largest number of shares of the class or series of shares previously acquired by it.

180.1132(2) (2) Certain corporations excluded. Section 180.1131 does not apply to a business combination of any of the following:

180.1132(2)(a) (a) A corporation if a business combination involving the corporation is governed by s. 186.31, 215.53, 215.73, 221.0702 or 223.21.

180.1132(2)(b) (b) A corporation whose original articles of incorporation have a provision expressly electing not to be governed by ss. 180.1130 to 180.1134.

180.1132(2)(c) (c) A resident domestic corporation whose shareholders adopt an amendment to the articles of incorporation on or after April 24, 1984, by a vote of at least 80 percent of the votes entitled to be cast by outstanding shares of voting shares of the resident domestic corporation, voting together as a single voting group and by two-thirds of the votes entitled to be cast by persons, if any, who are not significant shareholders of the resident domestic corporation, voting together as a single voting group, expressly electing not to be governed by ss. 180.1130 to 180.1134.

180.1132(3) (3) Opt-in for certain corporations. A corporation that is not a resident domestic corporation may elect, by express provision in its articles of incorporation, to be subject to ss. 180.1130 to 180.1134 as if it were a resident domestic corporation unless its articles of incorporation contain a provision stating that the corporation is a close corporation under ss. 180.1801 to 180.1837.

180.1132 History History: 1989 a. 303; 1991 a. 16; 1995 a. 336; 1997 a. 27.

180.1133 180.1133 Other requirements for greater votes. A business combination of a corporation that has a provision of the articles of incorporation permitted by s. 180.0727 is subject to s. 180.1131 unless one of the exemptions of s. 180.1132 has been met.

180.1133 History History: 1989 a. 303.

180.1134 180.1134 Actions during take-over offer. In addition to a vote otherwise required by law or the articles of incorporation of the resident domestic corporation, approval by vote of holders of a majority of the shares of the resident domestic corporation entitled to vote on the proposal is required at a shareholders’ meeting held in conformance with ss. 180.0705 and 180.0725 before any of the following actions may be taken by the officers or board of directors of the resident domestic corporation, while a take-over offer is being made, or after a take-over offer has been publicly announced and before it is concluded, for the resident domestic corporation’s voting shares:

180.1134(1) (1) Acquiring more than 5 percent of the resident domestic corporation’s voting shares at a price above the market value from any individual who or organization which holds more than 3 percent of the voting shares and has held the shares for less than 2 years, unless the resident domestic corporation makes at least an equal offer to acquire all voting shares and all securities which may be converted into voting shares.

180.1134(2) (2) Selling or optioning assets of the resident domestic corporation which amount to at least 10 percent of the market value of the resident domestic corporation. This subsection does not apply to a resident domestic corporation if all of the following are satisfied:

180.1134(2)(a) (a) The resident domestic corporation has at least 3 directors who are not either officers or employees of the resident domestic corporation.

180.1134(2)(b) (b) A majority of the directors who are not either officers or employees of the resident domestic corporation vote to not be governed by this subsection.

180.1134 History History: 1989 a. 303; 1991 a. 16, 32; 1997 a. 27.

180.1140 180.1140 Definitions applicable to business combination provisions. In ss. 180.1140 to 180.1144:

180.1140(1) (1) “Announcement date” means the date of the first public announcement of the final, definitive proposal for a business combination.

180.1140(2) (2) “Associate” of a person means any of the following:

180.1140(2)(a) (a) A corporation or organization of which the person is an officer, director, manager or partner or is the beneficial owner of at least 10 percent of any class of voting stock.

180.1140(2)(b) (b) A trust or other 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.

180.1140(2)(c) (c) A relative or spouse of the person, or a relative of the spouse, who has the same principal residence as the person.

180.1140(3) (3) 

180.1140(3)(a) (a) “Beneficial owner” of stock means a person, except as provided in par. (b), that meets any of the following conditions:

180.1140(3)(a)1. 1. Individually, or with or through any of the person’s affiliates or associates, beneficially owns the stock, directly or indirectly.

180.1140(3)(a)2. 2. Individually, or with or through any of the person’s affiliates or associates, directly or indirectly has the right, whether exercisable immediately or only after the passage of time, to acquire the stock pursuant to a written or unwritten agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise.

180.1140(3)(a)3. 3. Individually, or with or through any of the person’s affiliates or associates, directly or indirectly has the right to vote the stock pursuant to a written or unwritten agreement, arrangement or understanding, except that a person is not the beneficial owner of stock under this subdivision if the agreement, arrangement or understanding to vote that stock arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made in accordance with the applicable regulations under the exchange act and is not reportable under the report required under 17 CFR 240.13d-1 (1) (a) or a comparable or successor report.

180.1140(3)(a)4. 4. Has a written or unwritten agreement, arrangement or understanding with another person that is directly or indirectly a beneficial owner, or whose affiliates or associates are direct or indirect beneficial owners, of the stock, if the agreement, arrangement or understanding is for the purpose of acquiring, holding, disposing of or voting the stock, unless the voting is pursuant to a revocable proxy or consent described in subd. 3.

180.1140(3)(b) (b) A person is not the direct or indirect beneficial owner of stock tendered pursuant to a tender or exchange offer which is made by that person or an affiliate or associate of that person until the tendered stock is accepted for purchase or exchange.

180.1140(4) (4) “Business combination” means any of the following:

180.1140(4)(a) (a) A merger, including a merger under s. 180.1104, or interest exchange of the resident domestic corporation or any subsidiary of the resident domestic corporation with any of the following:

180.1140(4)(a)1. 1. An interested stockholder.

180.1140(4)(a)2. 2. A corporation, whether or not it is an interested stockholder, which is, or after a merger or interest exchange would be, an affiliate or associate of an interested stockholder.

180.1140(4)(b) (b) A sale, lease, exchange, mortgage, pledge, transfer or other disposition, in one transaction or a series of transactions, to or with an interested stockholder or an affiliate or associate of an interested stockholder of assets of the resident domestic corporation or a subsidiary of the resident domestic corporation if those assets meet any of the following conditions:

180.1140(4)(b)1. 1. Have an aggregate market value equal to at least 5 percent of the aggregate market value of all the assets, determined on a consolidated basis, of the resident domestic corporation.

180.1140(4)(b)2. 2. Have an aggregate market value equal to at least 5 percent of the aggregate market value of all the outstanding stock of the resident domestic corporation.

180.1140(4)(b)3. 3. Represent at least 10 percent of the earning power or income, determined on a consolidated basis, of the resident domestic corporation.

180.1140(4)(c) (c) The issuance or transfer by the resident domestic corporation or a subsidiary of the resident domestic corporation, in one transaction or a series of transactions, of any stock of the resident domestic corporation or a subsidiary of the resident domestic corporation if all of the following conditions are satisfied:

180.1140(4)(c)1. 1. The stock has an aggregate market value equal to at least 5 percent of the aggregate market value of all the outstanding stock of the resident domestic corporation.

180.1140(4)(c)2. 2. The stock is issued or transferred to an interested stockholder or an affiliate or associate of an interested stockholder, except for stock of the resident domestic corporation or such subsidiary issued or transferred pursuant to the exercise of warrants, rights or options to purchase such stock offered, or a dividend paid, or distribution made, proportionately to all stockholders of the resident domestic corporation.

180.1140(4)(d) (d) The adoption of a plan or proposal for the liquidation or dissolution of the resident domestic corporation which is proposed by, on behalf of, or pursuant to a written or unwritten agreement, arrangement or understanding with, an interested stockholder or an affiliate or associate of an interested stockholder.

180.1140(4)(e) (e) Any of the following, if the direct or indirect effect is to increase the proportionate share of the outstanding stock of a class or series or securities convertible into voting stock of the resident domestic corporation or a subsidiary of the resident domestic corporation beneficially owned by the interested stockholder or an affiliate or associate of the interested stockholder, unless the increase is the result of immaterial changes due to fractional share adjustments:

180.1140(4)(e)1. 1. A reclassification of securities, including, without limitation, a stock split, stock dividend or other distribution of stock in respect of stock, or reverse stock split.

180.1140(4)(e)2. 2. A recapitalization of the resident domestic corporation.

180.1140(4)(e)3. 3. A merger or interest exchange of the resident domestic corporation with a subsidiary of the resident domestic corporation.

180.1140(4)(e)4. 4. Any other transaction, whether or not with, into or involving the interested stockholder, which is proposed by, on behalf of, or pursuant to a written or unwritten agreement, arrangement or understanding with, the interested stockholder or an affiliate or associate of the interested stockholder.

180.1140(4)(f) (f) Receipt by an interested stockholder or an affiliate or associate of an interested stockholder of the direct or indirect benefit of a loan, advance, guarantee, pledge or other financial assistance or a tax credit or other tax advantage provided by or through the resident domestic corporation or any subsidiary of the resident domestic corporation, unless the interested stockholder receives the benefit proportionately as a holder of stock of the resident domestic corporation.

180.1140(5) (5) “Consummation date” means the date of consummation of a business combination.

180.1140(6) (6) 

180.1140(6)(a) (a) “Control”, “controlled by” or “under common control with” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting stock, except as provided in par. (b), by contract, or otherwise.

180.1140(6)(b) (b) “Control” of a corporation is not established under par. (a) if a person, in good faith and not for the purpose of circumventing ss. 180.1140 to 180.1144, holds voting power as an agent, bank, broker, nominee, custodian or trustee for one or more beneficial owners who do not individually or as a group have control of that corporation.

180.1140(7) (7) “Exchange act” means the securities exchange act of 1934 and amendments thereto.

180.1140(8) (8) 

180.1140(8)(a) (a) “Interested stockholder”, with respect to a resident domestic corporation, means a person other than the resident domestic corporation or a subsidiary of the resident domestic corporation that meets any of the following conditions:

180.1140(8)(a)1. 1. Is the beneficial owner of at least 10 percent of the voting power of the outstanding voting stock of that resident domestic corporation.

180.1140(8)(a)2. 2. Is an affiliate or associate of that resident domestic corporation and at any time within 3 years immediately before the date in question was the beneficial owner of at least 10 percent of the voting power of the then outstanding voting stock of that resident domestic corporation.

180.1140(8)(b) (b) For the purpose of determining whether a person is an interested stockholder, the number of shares of voting stock of the resident domestic corporation considered outstanding includes shares beneficially owned by the person but does not include any other unissued shares of voting stock of the resident domestic corporation which may be issuable pursuant to an agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.

180.1140(9) (9) 

180.1140(9)(a) (a) “Resident domestic corporation” means a domestic corporation that, as of the stock acquisition date in question, satisfies any of the following:

180.1140(9)(a)1. 1. Its principal offices are located in this state.

180.1140(9)(a)2. 2. It has significant business operations located in this state.

180.1140(9)(a)3. 3. More than 10 percent of the holders of record of its shares are residents of this state.

180.1140(9)(a)4. 4. More than 10 percent of its shares are held of record by residents of this state.

180.1140(9)(b) (b) For purposes of par. (a) 3. and 4., the record date for determining the percentages and numbers of shareholders and shares is the most recent record date established before the stock acquisition date in question, and the residence of each shareholder is the address of the shareholder which appears on the records of the resident domestic corporation.

180.1140(10) (10) “Stock” means any of the following:

180.1140(10)(a) (a) Shares, stock or similar security, certificate of interest, participation in a profit sharing agreement, voting trust certificate, or certificate of deposit for any of the items described in this paragraph.

180.1140(10)(b) (b) Security which is convertible, with or without consideration, into stock, or any warrant, call or other option or privilege of buying stock, or any other security carrying a right to acquire, subscribe to or purchase stock.

180.1140(11) (11) “Stock acquisition date”, with respect to any person, means the time when that person first becomes an interested stockholder of that resident domestic corporation.

180.1140(12) (12) “Subsidiary” of a resident domestic corporation means any other corporation, whether or not a domestic corporation, of which voting stock having a majority of the votes entitled to be cast is owned, directly or indirectly, by the resident domestic corporation.

180.1140(13) (13) “Voting stock” means capital stock of a corporation, whether or not a domestic corporation, entitled to vote generally in the election of directors.

180.1140 History History: 1989 a. 303; 1991 a. 39; 1993 a. 112; 2005 a. 476; 2021 a. 258.

180.1141 180.1141 Restrictions on business combinations.

180.1141(1) (1) Business combinations during the 3 years after the stock acquisition date. Except as provided in s. 180.1143, a resident domestic corporation may not engage in a business combination with an interested stockholder of the resident domestic corporation for 3 years after the interested stockholder’s stock acquisition date unless the board of directors of the resident domestic corporation has approved, before the interested stockholder’s stock acquisition date, that business combination or the purchase of stock made by the interested stockholder on that stock acquisition date.

180.1141(2) (2) Business combinations more than 3 years after the stock acquisition date. At any time after the 3-year period described in sub. (1), the resident domestic corporation may engage in a business combination with the interested stockholder but only if any of the following is satisfied:

180.1141(2)(a) (a) The board of directors of the resident domestic corporation has approved, before the interested stockholder’s stock acquisition date, the purchase of stock made by the interested stockholder on that stock acquisition date.

180.1141(2)(b) (b) The business combination is approved by the affirmative vote of the holders of a majority of the voting stock not beneficially owned by the interested stockholder at a meeting called for that purpose.

180.1141(2)(c) (c) The business combination meets all of the following conditions:

180.1141(2)(c)1. 1. Holders of all outstanding shares of stock of the resident domestic corporation not beneficially owned by the interested stockholder are each entitled to receive per share an aggregate amount of cash and the market value, as of the consummation date, of noncash consideration at least equal to the higher of the following:

180.1141(2)(c)1.a. a. The highest of: the market value per share on the announcement date with respect to the business combination, the market value per share on the interested stockholder’s stock acquisition date, the highest price per share paid by the interested stockholder, including brokerage commissions, transfer taxes and soliciting dealers’ fees, for shares of the same class or series within the 3 years immediately before and including the announcement date of the business combination, or the highest price per share paid by the interested stockholder, including brokerage commissions, transfer taxes and soliciting dealers’ fees, for shares of the same class or series within the 3 years immediately before and including the interested stockholder’s stock acquisition date; plus, in each case, interest compounded annually from the earliest date on which that highest per share acquisition price was paid or the per share market value was determined, through the consummation date, at the rate for one-year U.S. treasury obligations from time to time in effect; less the aggregate amount of any cash and the market value, as of the dividend payment date, of any noncash dividends paid per share since that date, up to the amount of that interest.

180.1141(2)(c)1.b. b. The highest preferential amount per share, if any, to which the holders of shares of that class or series of stock are entitled upon the voluntary or involuntary liquidation of the resident domestic corporation, plus the aggregate amount of dividends declared or due which those holders are entitled to before payment of dividends on another class or series of stock, unless the aggregate amount of those dividends is included in the preferential amount.

180.1141(2)(c)2. 2. The form of consideration to be received by holders of each particular class or series of outstanding stock in the business combination is in cash or, if the interested stockholder previously acquired shares of that class or series, the same form as the interested stockholder previously used to acquire the largest number of shares of that class or series.

180.1141(2)(d) (d) The business combination is a business combination as described in s. 180.1143 (1), (2), (3) or (4).

180.1141 History History: 1989 a. 303; 1991 a. 39.

180.1142 180.1142 Determining market value and control.

180.1142(1) (1) For purposes of ss. 180.1140 to 180.1144, the market value of stock or property other than cash or stock is determined as follows:

180.1142(1)(a) (a) In the case of stock, by:

180.1142(1)(a)1. 1. The highest closing sale price during the 30 days immediately before the date in question of a share of that class or series of stock on the composite tape for stocks listed on the New York stock exchange, or, if that class or series of stock is not quoted on the composite tape or if that class or series of stock is not listed on the New York stock exchange, on the principal U.S. securities exchange registered under the exchange act on which that class or series of stock is listed.

180.1142(1)(a)2. 2. If that class or series of stock is not listed on an exchange described in subd. 1., the highest closing bid quotation for a share of that class or series of stock during the 30 days immediately before the date in question on the National Association of Securities Dealers automated quotation system, or any similar system then in use.

180.1142(1)(a)3. 3. If no quotations described in subd. 2. are available, the fair market value on the date in question of a share of that class or series of stock as determined in good faith by the board of directors of the resident domestic corporation.

180.1142(1)(b) (b) In the case of property other than cash or stock, the fair market value of the property on the date in question as determined in good faith by the board of directors of the resident domestic corporation.