Chapter 180

180.1161(5)(am)6. 6. A statement that upon request the converted entity will provide a copy of the plan of conversion to any interest holder of the converting entity.

180.1161(5)(bm) (bm) In addition to the requirements of par. (am), the articles of conversion may contain any other provisions relating to the conversion, as determined by the converting entity in accordance with the plan of conversion.

180.1161(5)(cm) (cm) A conversion takes effect at the effective date and time of the articles of conversion.

180.1161(6) (6) Any civil, criminal, administrative, or investigatory proceeding that is pending by or against the converting entity may be continued as if the conversion did not occur, or the converted entity may be substituted in the proceeding for the converting entity.

180.1161(7) (7) 

180.1161(7)(a) (a) When a conversion takes effect, the department is an agent of any foreign converted entity for service of process in a proceeding to enforce any obligation or the rights of interest holders, in their capacity as such, of any converting entity.

180.1161(7)(b) (b) When a conversion takes effect, any foreign converted entity shall timely honor the rights and obligations of interest holders, in their capacity as such, under this chapter with respect to any converting entity.

180.1161(8) (8) When a conversion takes effect, any foreign converted entity may be served with process in this state for the collection and enforcement of any debts, obligations, or other liabilities of a domestic converting entity in the manner provided in s. 180.0504 or 180.1510, as applicable, except that references to the department in each section shall be treated as references to the appropriate authority under the foreign converted entity’s governing law for purposes of applying this provision.

180.1161 History History: 2001 a. 44; 2005 a. 476; 2015 a. 295; 2021 a. 258.

180.1171 180.1171 Domestication authorized. A domestic corporation may domesticate as a non-United States entity subject to non-United States governing law while continuing to be a domestic corporation, and a non-United States entity may domesticate as a domestic corporation subject to this chapter while continuing to be an entity subject to its non-United States governing law pursuant to ss. 180.1171 to 180.1175 and a plan of domestication, if the domestication is permitted under the governing law of the domesticating entity and permitted under the governing law of the domesticated entity.

180.1171 History History: 2021 a. 258.

180.1172 180.1172 Plan of domestication.

180.1172(1) (1) A plan of domestication must be in a record and contain all of the following:

180.1172(1)(a) (a) The name, type of entity, and governing law of the domesticating entity.

180.1172(1)(b) (b) The name, type of entity, and governing law of the domesticated entity.

180.1172(1)(c) (c) The terms and conditions of the domestication.

180.1172(1)(d) (d) The organizational documents of the domesticated entity that are to be in a record immediately after the domestication becomes effective, including any proposed amendments to the organizational documents of the domesticating entity that are to be in a record immediately after the domestication becomes effective.

180.1172(2) (2) In addition to the requirements of sub. (1), a plan of domestication may contain any other provision relating to the domestication and not prohibited by law.

180.1172 History History: 2021 a. 258.

180.1173 180.1173 Approval of domestication; amendment; abandonment.

180.1173(1) (1) Subject to the governing law of each of the domesticating and domesticated entity, a plan of domestication must be approved by the shareholders of a domesticating Wisconsin corporation. A plan of domestication of a domesticating non-United States entity must be approved pursuant to the governing law of the domesticating entity.

180.1173(2) (2) Subject to the governing law of each of the domesticating and domesticated entity, after a plan of domestication is approved, and at any time before a domestication becomes effective, the domesticating entity may amend the plan of domestication or abandon the domestication as provided in the plan of domestication or, except as otherwise provided in the plan of domestication, with the same vote or consent as was required to approve the plan of domestication.

180.1173(3) (3) If, after articles of domestication have been delivered to the department for filing and before the domestication becomes effective, the plan of domestication is amended in a manner that requires an amendment to the articles of domestication or if the domestication is abandoned, a statement of amendment or abandonment, signed by the domesticating entity, must be delivered to the department for filing before the domestication becomes effective. When a statement of abandonment becomes effective, the domestication is abandoned and does not become effective. The statement of amendment or abandonment must contain all of the following:

180.1173(3)(a) (a) The name of the domesticating entity and the domesticated entity under the plan of domestication.

180.1173(3)(b) (b) The amendment to or abandonment of the articles of domestication.

180.1173(3)(c) (c) A statement that the amendment or abandonment was approved in accordance with this section.

180.1173 History History: 2021 a. 258.

180.1174 180.1174 Filings required for domestication; effective date.

180.1174(1) (1) After the domesticating entity has approved a plan of domestication in accordance with its governing law, the domesticating entity shall deliver, or cause to be delivered, to the department for filing articles of domestication setting forth all of the following:

180.1174(1)(a) (a) The name, type of entity, and governing law of the domesticating entity.

180.1174(1)(b) (b) The name, type of entity, and governing law of the domesticated entity.

180.1174(1)(c) (c) A statement that a plan of domestication has been approved and adopted by the domesticating entity in accordance with its governing law.

180.1174(1)(d) (d) Any amendments to the organizational documents of the domesticating entity and any organizational documents of the domesticated entity under s. 180.1172 (1) (d) that are to be in a public record under their respective governing laws.

180.1174(1)(e) (e) A statement that the plan of domestication is on file at the principal office of the domesticated entity.

180.1174(1)(f) (f) A statement that upon request the domesticated entity will provide a copy of the plan of domestication to any person that was an interest holder in the domesticating entity at the time of the domestication.

180.1174(2) (2) In addition to the requirements of sub. (1), the articles of domestication may contain any other provisions relating to the domestication, as determined by the domesticating entity in accordance with the plan of domestication.

180.1174(3) (3) A domestication takes effect at the effective date and time of the articles of domestication.

180.1174 History History: 2021 a. 258.

180.1175 180.1175 Effect of domestication.

180.1175(1) (1) When a domestication becomes effective, all of the following apply:

180.1175(1)(a) (a) The domesticating entity becomes a domestic entity under and becomes subject to the governing law of the jurisdiction in which it has domesticated while continuing to be a domestic organization under and subject to the governing law of the domesticating entity.

180.1175(1)(am) (am)

180.1175(1)(am)1. 1. Except as provided in this paragraph, no interest holder shall have interest holder liability with respect to the domesticating or domesticated entity.

180.1175(1)(am)2. 2. If, under the governing law of the domesticating entity, one or more of the interest holders thereof has interest holder liability with respect to the domesticating entity, such interest holder or holders shall continue to 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 domesticating entity.

180.1175(1)(am)3. 3. If, under the governing law of the domesticated entity, one or more of the interest holders thereof will have interest holder liability after the domestication with respect to the domesticated entity, such interest holder or holders will have such liability and associated contribution and other rights to the extent provided in such governing law with respect to the debts, obligations, and other liabilities of the domesticated entity that accrue after the domestication.

180.1175(1)(am)4. 4. This paragraph does not affect liability under any taxation laws.

180.1175(1)(b) (b) The title to all property owned by the domesticating entity is vested in the domesticated entity without transfer, reversion, or impairment.

180.1175(1)(c) (c) The domesticated entity has all debts, obligations, or other liabilities of the domesticating entity.

180.1175(1)(d) (d) A civil, criminal, or administrative proceeding pending by or against the domesticating entity may be continued as if the domestication did not occur, or the domesticated entity may be substituted in the proceeding for the domesticating entity.

180.1175(1)(e) (e) The non-United States organizational documents of the domesticated entity are amended to the extent, if any, provided in the plan of domestication and, to the extent such amendments are to be reflected in a public record, as provided in the articles of domestication.

180.1175(1)(f) (f) The United States organizational documents of the domesticated entity are as provided in the plan of domestication and, to the extent such organizational documents are to be reflected in a public record, as provided in the articles of domestication.

180.1175(1)(g) (g) Except as prohibited by other law or as otherwise provided in the articles and plan of domestication, all of the rights, privileges, immunities, powers, and purposes of the domesticating entity vest in the domesticated entity.

180.1175(2) (2) Except as otherwise provided in the articles and plan of domestication, if the domesticating entity is a partnership, limited liability company, or other entity subject to dissolution under its governing law, the domestication does not dissolve the domesticating entity for the purposes of its governing law.

180.1175(3) (3) A domesticated Wisconsin entity consents to the jurisdiction of the courts of this state to enforce any debt, obligation, or other liability owed by the domesticating or domesticated entity.

180.1175 History History: 2021 a. 258.

subch. XII of ch. 180 SUBCHAPTER XII

SALE OF ASSETS

180.1201 180.1201 Sale of assets in regular course of business; mortgage of assets; transfer of assets to subsidiary.

180.1201(1) (1) A corporation may, on the terms and conditions and for the consideration determined by the board of directors, do any of the following:

180.1201(1)(a) (a) Sell, lease, exchange or otherwise dispose of all, or substantially all, of its property in the usual and regular course of business.

180.1201(1)(b) (b) Sell, lease, exchange or otherwise dispose of less than substantially all of its property whether or not in the usual and regular course of business.

180.1201(1)(c) (c) Mortgage, pledge, dedicate to the repayment of indebtedness, whether with or without recourse, or otherwise encumber any or all of its property whether or not in the usual and regular course of business.

180.1201(1)(d) (d) Transfer any or all of its assets to one or more corporations or other entities, all of the shares or interests of which are owned by the corporation, unless the transfer is in connection with a plan or action involving the sale, exchange, or disposal of all or substantially all of the assets of the corporation and requires shareholder approval under s. 180.1202.

180.1201(2) (2) Unless required by the articles of incorporation, approval by the shareholders of a transaction permitted in sub. (1) is not required.

180.1201 History History: 1989 a. 303; 1991 a. 16; 2005 a. 476.

180.1202 180.1202 Sale of assets other than in regular course of business.

180.1202(1) (1) Except as provided in sub. (5), a corporation may sell, lease, exchange or otherwise dispose of all, or substantially all, of its property, with or without goodwill, otherwise than in the usual and regular course of business, on the terms and conditions and for the consideration determined by the corporation’s board of directors, upon adoption of a resolution by the board of directors approving the proposed transaction and approval by its shareholders of the proposed transaction.

180.1202(2) (2) The corporation shall notify each shareholder, whether or not entitled to vote, of the proposed shareholders’ meeting in accordance with s. 180.0705, except the notice shall be given no fewer than 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 sale, lease, exchange or other disposition of all, or substantially all, of the property of the corporation and contain or be accompanied by a description of the transaction.

180.1202(3) (3) 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 proposed transaction is authorized if approved by a majority of all the votes entitled to be cast on the transaction.

180.1202(4) (4) After a sale, lease, exchange or other disposition of property is authorized, the transaction may be abandoned, subject to any contractual rights, without further shareholder action.

180.1202(5) (5) A transaction that constitutes a distribution is governed by s. 180.0640 and not by this section.

180.1202 History History: 1989 a. 303; 1991 a. 16; 1997 a. 254.

180.1202 Annotation In determining whether “substantially all” corporate assets are transferred within the meaning of s. 180.71 [now this section] more than dollar values must be considered. The determinitive factor is whether the sale changes the nature of corporate activity. Sterman v. Hornbeck, 156 Wis. 2d 556, 457 N.W.2d 874 (Ct. App. 1990).

subch. XIII of ch. 180 SUBCHAPTER XIII

DISSENTERS’ RIGHTS

180.1301 180.1301 Definitions. In ss. 180.1301 to 180.1331:

180.1301(1) (1) “Beneficial shareholder” means a person who is a beneficial owner of shares held by a nominee as the shareholder.

180.1301(1m) (1m) “Business combination” has the meaning given in s. 180.1130 (3).

180.1301(2) (2) “Corporation” means the issuer corporation or, if the corporate action giving rise to dissenters’ rights under s. 180.1302 is a merger or interest exchange that has been effectuated, the surviving domestic corporation or foreign corporation of the merger or the acquiring domestic corporation or foreign corporation of the interest exchange.

180.1301(3) (3) “Dissenter” means a shareholder or beneficial shareholder who is entitled to dissent from corporate action under s. 180.1302 and who exercises that right when and in the manner required by ss. 180.1320 to 180.1328.

180.1301(4) (4) “Fair value”, with respect to a dissenter’s shares other than in a business combination, means the value of the shares immediately before the effectuation of the corporate action to which the dissenter objects, excluding any appreciation or depreciation in anticipation of the corporate action unless exclusion would be inequitable. “Fair value”, with respect to a dissenter’s shares in a business combination, means market value, as defined in s. 180.1130 (9) (a) 1. to 4.

180.1301(5) (5) “Interest” means interest from the effectuation date of the corporate action until the date of payment, at the average rate currently paid by the corporation on its principal bank loans or, if none, at a rate that is fair and equitable under all of the circumstances.

180.1301(6) (6) “Issuer corporation” means a domestic corporation that is the issuer of the shares held by a dissenter before the corporate action.

180.1301 History History: 1989 a. 303; 1991 a. 16; 2021 a. 258.

180.1301 Annotation “Date of payment” in sub. (5) refers to the actual payment date by a corporation following a special proceeding, even if the payment occurs after a “verdict, decision or report,” within the meaning of s. 814.04 (4), or after “judgment,” within the meaning of s. 815.05 (8). Thus the definition of interest contained in sub. (5) applies to the time period following a court decision on fair value until final payment is made. HMO-W Incorporated v. SSM Health Care System, 2003 WI App 137, 266 Wis. 2d 69, 667 N.W.2d 733, 02-0042.

180.1301 Annotation The phrase “rate that is fair and equitable under all of the circumstances” in sub. (5) directs the circuit court to consider the circumstances of the particular case in determining the interest rate to be paid. It was appropriate under this standard to look at the borrowing power of a parent corporation to determine if the rate the subsidiary would obtain would be the rate the parent could obtain. HMO-W Incorporated v. SSM Health Care System, 2003 WI App 137, 266 Wis. 2d 69, 667 N.W.2d 733, 02-0042.

180.1302 180.1302 Right to dissent.

180.1302(1) (1) Except as provided in sub. (4) and s. 180.1008 (3), a shareholder or beneficial shareholder may dissent from, and obtain payment of the fair value of his or her shares in the event of, any of the following corporate actions:

180.1302(1)(a) (a) Consummation of a plan of merger to which the issuer corporation is a party if any of the following applies: