Chapter 181

181.0844 History History: 1997 a. 79.

181.0850 181.0850 Reliance by directors or officers. Unless the director or officer has knowledge that makes reliance unwarranted, a director or officer, in discharging his or her duties to the corporation, may rely on information, opinions, reports or statements, any of which may be written or oral, formal or informal, including financial statements and other financial data, if prepared or presented by any of the following:

181.0850(1) (1) Officers and employees. An officer or employee of the corporation whom the director or officer believes in good faith to be reliable and competent in the matters presented.

181.0850(2) (2) Professionals and experts. Legal counsel, certified public accountants licensed or certified under ch. 442, or other persons as to matters the director or officer believes in good faith are within the person’s professional or expert competence.

181.0850(3) (3) Committees. In the case of reliance by a director, a committee of the board of directors of which the director is not a member if the director believes in good faith that the committee merits confidence.

181.0850 History History: 1997 a. 79; 2001 a. 16.

181.0853 181.0853 Consideration of interests in addition to members’ interests. In discharging his or her duties to the corporation and in determining what he or she believes to be in the best interests of the corporation, a director or officer may, in addition to considering the effects of any action on members, consider the following:

181.0853(1) (1) Employees, suppliers and customers. The effects of the action on employees, suppliers and customers of the corporation.

181.0853(2) (2) Communities. The effects of the action on communities in which the corporation operates.

181.0853(3) (3) Other. Any other factors that the director or officer considers pertinent.

181.0853 History History: 1997 a. 79.

181.0855 181.0855 Limited liability of directors and officers.

181.0855(1) (1) In general. Except as provided in subs. (2) and (3), a director or officer is not liable to the corporation, its members or creditors, or any person asserting rights on behalf of the corporation, its members or creditors, or any other person, for damages, settlements, fees, fines, penalties or other monetary liabilities arising from a breach of, or failure to perform, any duty resulting solely from his or her status as a director or officer, unless the person asserting liability proves that the breach or failure to perform constitutes any of the following:

181.0855(1)(a) (a) A willful failure to deal fairly with the corporation or its members in connection with a matter in which the director or officer has a material conflict of interest.

181.0855(1)(b) (b) A violation of criminal law, unless the director or officer had reasonable cause to believe that his or her conduct was lawful or no reasonable cause to believe that his or her conduct was unlawful.

181.0855(1)(c) (c) A transaction from which the director or officer derived an improper personal profit or benefit.

181.0855(1)(d) (d) Willful misconduct.

181.0855(2) (2) Exceptions. Except as provided in sub. (3), this section does not apply to any of the following:

181.0855(2)(a) (a) A civil, criminal, administrative or investigatory proceeding brought by or on behalf of any governmental unit, authority or agency.

181.0855(2)(b) (b) A proceeding brought by any person for a violation of state or federal law where the proceeding is brought pursuant to an express private right of action created by state or federal statute.

181.0855(2)(c) (c) The liability of a director under ss. 181.0832 and 181.0833.

181.0855(3) (3) Governmental entity acting in capacity as private party. Subsection (2) (a) and (b) does not apply to a proceeding brought by a governmental unit, authority or agency in its capacity as a private party or contractor.

181.0855 History History: 1997 a. 79.

181.0860 181.0860 Statements of changes in directors or principal officers.

181.0860(1) (1) Changes in directors or principal officers. Whenever initial directors and principal officers are selected, or changes are made in the directors or principal officers of a corporation, the corporation may file with the department a statement that includes the names and addresses of all of the directors or principal officers, or both if there have been changes in both. The information in the statement shall be current as of the date on which the statement is signed on behalf of the corporation.

181.0860(2) (2) Resignation notices. A director who resigns under s. 181.0807 or a principal officer who resigns under s. 181.0843 (1) may file a copy of the resignation notice with the department.

181.0860 History History: 1997 a. 79.

181.0871 181.0871 Definitions applicable to indemnification and insurance provisions. In ss. 181.0871 to 181.0889:

181.0871(1) (1) “Corporation” means a domestic corporation and any domestic or foreign predecessor of a domestic corporation where the predecessor corporation’s existence ceased upon the consummation of a merger or other transaction.

181.0871(2) (2) “Director or officer” means any of the following:

181.0871(2)(a) (a) An individual who is or was a director or officer of a corporation.

181.0871(2)(b) (b) An individual who, while a director or officer of a corporation, is or was serving at the corporation’s request as a director, officer, partner, trustee, member of any governing or decision-making committee, manager, employee or agent of another corporation or foreign corporation, limited liability company, partnership, joint venture, trust or other enterprise.

181.0871(2)(c) (c) An individual who, while a director or officer of a corporation, is or was serving an employee benefit plan because his or her duties to the corporation also impose duties on, or otherwise involve services by, the individual to the plan or to participants in or beneficiaries of the plan.

181.0871(2)(d) (d) Unless the context requires otherwise, the estate or personal representative of a director or officer.

181.0871(3) (3) “Expenses” include fees, costs, charges, disbursements, attorney fees and any other expenses incurred in connection with a proceeding.

181.0871(4) (4) “Liability” includes the obligation to pay a judgment, settlement, forfeiture, or fine, including any excise tax assessed with respect to an employee benefit plan, plus costs, fees, and surcharges imposed under ch. 814, and reasonable expenses.

181.0871(5) (5) “Party” includes an individual who was or is, or who is threatened to be made, a named defendant or respondent in a proceeding.

181.0871(6) (6) “Proceeding” means any threatened, pending or completed civil, criminal, administrative or investigative action, suit, arbitration or other proceeding, whether formal or informal, which involves foreign, federal, state or local law and which is brought by or in the right of the corporation or by any other person.

181.0871 History History: 1997 a. 79; 2003 a. 139.

181.0872 181.0872 Mandatory indemnification.

181.0872(1) (1) In general. A corporation shall indemnify a director or officer, to the extent that he or she has been successful on the merits or otherwise in the defense of a proceeding, for all reasonable expenses incurred in the proceeding if the director or officer was a party because he or she is a director or officer of the corporation.

181.0872(2) (2) Exceptions.

181.0872(2)(a) (a) In cases not included under sub. (1), a corporation shall indemnify a director or officer against liability incurred by the director or officer in a proceeding to which the director or officer was a party because he or she is a director or officer of the corporation, unless liability was incurred because the director or officer breached or failed to perform a duty that he or she owes to the corporation and the breach or failure to perform constitutes any of the following:

181.0872(2)(a)1. 1. A willful failure to deal fairly with the corporation or its members in connection with a matter in which the director or officer has a material conflict of interest.

181.0872(2)(a)2. 2. A violation of the criminal law, unless the director or officer had reasonable cause to believe that his or her conduct was lawful or no reasonable cause to believe that his or her conduct was unlawful.

181.0872(2)(a)3. 3. A transaction from which the director or officer derived an improper personal profit or benefit.

181.0872(2)(a)4. 4. Willful misconduct.

181.0872(2)(b) (b) Determination of whether indemnification is required under this subsection shall be made under s. 181.0873.

181.0872(2)(c) (c) The termination of a proceeding by judgment, order, settlement or conviction, or upon a plea of no contest or an equivalent plea, does not, by itself, create a presumption that indemnification of the director or officer is not required under this subsection.

181.0872(3) (3) Written request required. A director or officer who seeks indemnification under this section shall make a written request to the corporation.

181.0872(4) (4) Limitation by articles of incorporation.

181.0872(4)(a) (a) Indemnification under this section is not required to the extent limited by the articles of incorporation under s. 181.0875.

181.0872(4)(b) (b) Indemnification under this section is not required if the director or officer has previously received indemnification, reimbursement or allowance of expenses from any person, including the corporation, in connection with the same proceeding.

181.0872 History History: 1997 a. 79.

181.0873 181.0873 Determination of right to indemnification. Unless otherwise provided by the articles of incorporation or bylaws or by written agreement between the director or officer and the corporation, the director or officer seeking indemnification under s. 181.0872 (2) shall select one of the following means for determining his or her right to indemnification:

181.0873(1) (1) Board of director vote. By a majority vote of a quorum of the board of directors consisting of directors who are not at the time parties to the same or related proceedings. If a quorum of disinterested directors cannot be obtained, by a majority vote of a committee duly appointed by the board of directors and consisting solely of 2 or more directors who are not at the time parties to the same or related proceedings. Directors who are parties to the same or related proceedings may participate in the designation of members of the committee.

181.0873(2) (2) Independent legal counsel. By independent legal counsel selected by a quorum of the board of directors or its committee in the manner prescribed in sub. (1) or, if unable to obtain such a quorum or committee, by a majority vote of the full board of directors, including directors who are parties to the same or related proceedings.

181.0873(3) (3) Arbitrators. By a panel of 3 arbitrators consisting of one arbitrator selected by those directors entitled under sub. (2) to select independent legal counsel, one arbitrator selected by the director or officer seeking indemnification and one arbitrator selected by the 2 arbitrators previously selected.

181.0873(4) (4) Members. By an affirmative vote of members with voting rights, if any. Membership rights owned by, or voted under the control of, persons who are at the time parties to the same or related proceedings, whether as plaintiffs or defendants or in any other capacity, may not be voted in making the determination.

181.0873(5) (5) Court. By a court under s. 181.0879.

181.0873(6) (6) Other methods. By any other method provided for in any additional right to indemnification permitted under s. 181.0877.

181.0873 History History: 1997 a. 79.

181.0874 181.0874 Allowance of expenses as incurred. Upon written request by a director or officer who is a party to a proceeding, a corporation may pay or reimburse his or her reasonable expenses as incurred if the director or officer provides the corporation with all of the following:

181.0874(1) (1) Written affirmation. A written affirmation of his or her good faith belief that he or she has not breached or failed to perform his or her duties to the corporation.

181.0874(2) (2) Repayment undertaking. A written undertaking, executed personally or on his or her behalf, to repay the allowance and, if required by the corporation, to pay reasonable interest on the allowance to the extent that it is ultimately determined under s. 181.0873 that indemnification under s. 181.0872 (2) is not required and that indemnification is not ordered by a court under s. 181.0879 (2) (b). The undertaking under this subsection shall be an unlimited general obligation of the director or officer and may be accepted without reference to his or her ability to repay the allowance. The undertaking may be secured or unsecured.

181.0874 History History: 1997 a. 79.

181.0875 181.0875 Corporation may limit indemnification.

181.0875(1) (1) Methods of limiting obligation. A corporation’s obligations to indemnify under s. 181.0872 may be limited as follows:

181.0875(1)(a) (a) If the corporation is incorporated on or after June 13, 1987, by the articles of incorporation, including any amendments or restatements of the articles of incorporation.

181.0875(1)(b) (b) If the corporation was incorporated before June 13, 1987, by an amendment to, or restatement of, the articles of incorporation which becomes effective on or after June 13, 1987.

181.0875(2) (2) Applicability. A limitation under sub. (1) applies if the first alleged act of a director or officer for which indemnification is sought occurred while the limitation was in effect.

181.0875 History History: 1997 a. 79.

181.0877 181.0877 Additional rights to indemnification and allowance of expenses.

181.0877(1) (1) Additional rights to indemnification. Except as provided in sub. (2), ss. 181.0872 and 181.0874 do not preclude any additional right to indemnification or allowance of expenses that a director or officer may have under any of the following:

181.0877(1)(a) (a) The articles of incorporation or bylaws.

181.0877(1)(b) (b) A written agreement between the director or officer and the corporation.

181.0877(1)(c) (c) A resolution of the board of directors.

181.0877(1)(d) (d) A resolution, after notice, adopted by a majority vote of members who are entitled to vote.

181.0877(2) (2) When prohibited. Regardless of the existence of an additional right under sub. (1), the corporation may not indemnify a director or officer, or permit a director or officer to retain any allowance of expenses unless it is determined by or on behalf of the corporation that the director or officer did not breach or fail to perform a duty that he or she owes to the corporation which constitutes conduct under s. 181.0872 (2) (a) 1., 2., 3. or 4. A director or officer who is a party to the same or related proceeding for which indemnification or an allowance of expenses is sought may not participate in a determination under this subsection.

181.0877(3) (3) Applicability. Sections 181.0871 to 181.0883 do not affect a corporation’s power to pay or reimburse expenses incurred by a director or officer in any of the following circumstances:

181.0877(3)(a) (a) As a witness in a proceeding to which he or she is not a party.

181.0877(3)(b) (b) As a plaintiff or petitioner in a proceeding because he or she is or was an employee, agent, director or officer of the corporation.

181.0877 History History: 1997 a. 79.

181.0879 181.0879 Court-ordered indemnification.

181.0879(1) (1) Application to court. Except as provided otherwise by written agreement between the director or officer and the corporation, a director or officer who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. Application shall be made for an initial determination by the court under s. 181.0873 (5) or for review by the court of an adverse determination under s. 181.0873 (1), (2), (3), (4) or (6). After receipt of an application, the court shall give any notice it considers necessary.

181.0879(2) (2) Standards used by court. The court shall order indemnification if it determines any of the following:

181.0879(2)(a) (a) That the director or officer is entitled to indemnification under s. 181.0872 (1) or (2). If the court also determines that the corporation unreasonably refused the director’s or officer’s request for indemnification, the court shall order the corporation to pay the director’s or officer’s reasonable expenses incurred to obtain the court-ordered indemnification.

181.0879(2)(b) (b) That the director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, regardless of whether indemnification is required under s. 181.0872 (2).

181.0879 History History: 1997 a. 79.