Chapter 185

185.03(13)(b) (b) Unless emergency bylaws adopted under s. 185.07 (4) provide otherwise, give notice of a meeting of the board only to those directors whom it is practicable to reach, and give notice to them in any practicable manner.

185.03 History History: 1985 a. 30, 332; 2015 a. 117; 2017 a. 76; 2021 a. 5.

185.031 185.031 Refunds after forfeiture. Subsequent to a forfeiture under s. 185.03 (10), the owner of the forfeited funds may submit a claim to the board. If the board determines that the person owned the funds at the time of the forfeiture, it shall refund the funds to the person.

185.031 History History: 1985 a. 332.

185.033 185.033 Restriction on changes to articles.

185.033(1) (1) If the articles contain a prohibition on changes to the provision establishing the basis of distribution as provided in s. 185.05 (1) (j), no changes may be made to the provision including by amendment under s. 185.51 or 185.52, approval of a plan of division under s. 185.63, adoption of restated articles under s. 185.54, approval of a plan of merger or consolidation under s. 185.61 and conversion to a nonstock corporation under s. 181.1150.

185.033(2) (2) If, upon dissolution of a cooperative with articles containing a prohibition on changes in the basis of distribution, the distributions required are wholly or partly impossible of execution, the whole or part of the net proceeds shall be distributed as provided in s. 185.71 (3).

185.033 History History: 1985 a. 30; 1997 a. 79.

185.034 185.034 Definitions applicable to indemnification and insurance provisions. In ss. 185.034 to 185.042:

185.034(1) (1) “Cooperative” means a domestic cooperative and any domestic or foreign predecessor of a domestic cooperative where the predecessor cooperative’s existence ceased upon the consummation of a merger or other transaction.

185.034(2) (2) “Director or officer” means any of the following:

185.034(2)(a) (a) A natural person who is or was a director or officer of a cooperative.

185.034(2)(b) (b) A natural person who, while a director or officer of a cooperative, is or was serving at the cooperative’s request as a director, officer, partner, trustee, member of any governing or decision-making committee, manager, employee or agent of an association, corporation, limited liability company, partnership, joint venture, trust or other enterprise.

185.034(2)(c) (c) A natural person who, while a director or officer of a cooperative, is or was serving an employee benefit plan because his or her duties to the cooperative also imposed duties on, or otherwise involved services by, the person to the plan or to participants in or beneficiaries of the plan.

185.034(2)(d) (d) A natural person who is or was the chief executive, managerial employee of a cooperative, regardless of the person’s title.

185.034(2)(e) (e) Unless the context requires otherwise, the estate or personal representative of a director or officer.

185.034(3) (3) “Expenses” include fees, costs, charges, disbursements, attorney fees and any other expenses incurred in connection with a proceeding.

185.034(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.

185.034(5) (5) “Party” means a natural person who was or is, or who is threatened to be made, a named defendant or respondent in a proceeding.

185.034(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 cooperative or by any other person.

185.034 History History: 1987 a. 13; 1993 a. 112; 2003 a. 139.

185.035 185.035 Mandatory indemnification.

185.035(1) (1) A cooperative shall indemnify a director or officer, to the extent 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 cooperative.

185.035(2) (2) 

185.035(2)(a) (a) In cases not included under sub. (1), a cooperative 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 cooperative, unless liability was incurred because the director or officer breached or failed to perform a duty he or she owes to the cooperative and the breach or failure to perform constitutes any of the following:

185.035(2)(a)1. 1. A willful failure to deal fairly with the cooperative, its members or stockholders in connection with a matter in which the director or officer has a material conflict of interest.

185.035(2)(a)2. 2. A violation of criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or no reasonable cause to believe his or her conduct was unlawful.

185.035(2)(a)3. 3. A transaction from which the director or officer derived an improper personal profit.

185.035(2)(a)4. 4. Willful misconduct.

185.035(2)(b) (b) Determination of whether indemnification is required under this subsection shall be made under s. 185.036.

185.035(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.

185.035(3) (3) A director or officer who seeks indemnification under this section shall make a written request to the cooperative.

185.035(4) (4) Indemnification under this section is not required if the director or officer has previously received indemnification or allowance of expenses from any person, including the cooperative, in connection with the same proceeding.

185.035 History History: 1987 a. 13.

185.035 Annotation Cooperative indemnification. La Rowe and Weine. WBB Sept. 1988.

185.036 185.036 Determination of right to indemnification. Unless otherwise provided by the articles or bylaws or by written agreement between the director or officer and the cooperative, the director or officer seeking indemnification under s. 185.035 (2) shall select one of the following means for determining his or her right to indemnification:

185.036(1) (1) By majority vote of a quorum of the board consisting of directors not at the time parties to the same or related proceedings. If a quorum of disinterested directors cannot be obtained, by majority vote of a committee duly appointed by the board and consisting solely of 2 or more directors 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.

185.036(2) (2) By independent legal counsel selected by a quorum of the board 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, including directors who are parties to the same or related proceedings.

185.036(3) (3) 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.

185.036(4) (4) By a majority vote of a quorum of the members. Members who are at the time parties to the same or related proceedings, whether as plaintiffs or defendants or in any other capacity, may not vote in making the determination.

185.036(5) (5) By a court under s. 185.039.

185.036(6) (6) By any other method provided for in any additional right to indemnification permitted under s. 185.038.

185.036 History History: 1987 a. 13.

185.037 185.037 Allowance of expenses as incurred. Upon written request by a director or officer who is a party to a proceeding, a cooperative may pay or reimburse his or her reasonable expenses as incurred if the director or officer provides the cooperative with all of the following:

185.037(1) (1) 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 cooperative.

185.037(2) (2) A written undertaking, executed personally or on his or her behalf, to repay the allowance and, if required by the cooperative, to pay reasonable interest on the allowance to the extent that it is ultimately determined under s. 185.036 that indemnification under s. 185.035 (2) is not required and that indemnification is not ordered by a court under s. 185.039 (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.

185.037 History History: 1987 a. 13.

185.038 185.038 Additional rights to indemnification and allowance of expenses.

185.038(1) (1) Except as provided in sub. (2), ss. 185.035 and 185.037 do not preclude any additional right to indemnification or allowance of expenses that a director or officer may have under any of the following:

185.038(1)(a) (a) The articles or bylaws.

185.038(1)(b) (b) A written agreement between the director or officer and the cooperative.

185.038(1)(c) (c) A resolution of the board.

185.038(1)(d) (d) A resolution, after notice, adopted by a majority vote of members who are entitled to vote.

185.038(2) (2) Regardless of the existence of an additional right under sub. (1), the cooperative 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 cooperative that the director or officer did not breach or fail to perform a duty he or she owes to the cooperative which constitutes conduct under s. 185.035 (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.

185.038(3) (3) Sections 185.034 to 185.042 do not affect a cooperative’s power to pay or reimburse expenses incurred by a director or officer in any of the following circumstances:

185.038(3)(a) (a) As a witness in a proceeding to which he or she is not a party.

185.038(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 cooperative.

185.038 History History: 1987 a. 13.

185.039 185.039 Court-ordered indemnification.

185.039(1) (1) Except as provided otherwise by written agreement between the director or officer and the cooperative, 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. 185.036 (5) or for review by the court of an adverse determination under s. 185.036 (1), (2), (3), (4) or (6). After receipt of an application, the court shall give any notice it considers necessary.

185.039(2) (2) The court shall order indemnification if it determines any of the following:

185.039(2)(a) (a) That the director or officer is entitled to indemnification under s. 185.035 (1) or (2). If the court also determines that the cooperative unreasonably refused the director’s or officer’s request for indemnification, the court shall order the cooperative to pay the director’s or officer’s reasonable expenses incurred to obtain the court-ordered indemnification.

185.039(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. 185.035 (2).

185.039 History History: 1987 a. 13.

185.04 185.04 Indemnification and allowance of expenses of employees and agents. A cooperative may indemnify and allow reasonable expenses of an employee or agent who is not a director or officer to the extent provided by the articles or bylaws, by general or specific action of the board or by contract.

185.04 History History: 1987 a. 13.

185.041 185.041 Insurance. A cooperative may purchase and maintain insurance on behalf of an individual who is an employee, agent, director or officer of the cooperative against liability asserted against and incurred by the individual in his or her capacity as an employee, agent, director or officer, or arising from his or her status as an employee, agent, director or officer, regardless of whether the cooperative is required or authorized to indemnify or allow expenses to the individual against the same liability under ss. 185.035, 185.037, 185.038 and 185.04.

185.041 History History: 1987 a. 13.

185.042 185.042 Indemnification and insurance against securities law claims.

185.042(1) (1) It is the public policy of this state to require or permit indemnification, allowance of expenses and insurance for any liability incurred in connection with a proceeding involving securities regulation described under sub. (2) to the extent required or permitted under ss. 185.034 to 185.041.

185.042(2) (2) Sections 185.034 to 185.041 apply, to the extent applicable to any other proceeding, to any proceeding involving a federal or state statute, rule or regulation regulating the offer, sale or purchase of securities, securities brokers or dealers, or investment companies or investment advisers.

185.042 History History: 1987 a. 13.

185.043 185.043 Incorporators.

185.043(1) (1) Except as provided in sub. (2), 5 or more adults, one of whom must be a resident, may form a cooperative by signing, acknowledging and filing articles.

185.043(2) (2) If the cooperative is formed for purposes of operating as a small cooperative wholesaler under s. 125.545, 3 or more individuals, at least one of whom must be a resident and all of which must be owners of small wineries or small manufacturers certified by the division of alcohol beverages in the department of revenue under s. 125.545 (6) (a), may form a cooperative by signing, acknowledging, and filing articles. Membership in a cooperative formed under this subsection is limited to small wineries or small manufacturers certified by the division of alcohol beverages under s. 125.545 (6) (a).

185.043 History History: 1981 c. 337; 1985 a. 30 s. 42; 1987 a. 13 s. 23; Stats. 1987 s. 185.043; 2007 a. 85; 2023 a. 73.

185.045 185.045 Reserved or registered name. Sections 180.0122 (1m) (c) to (i), 180.0402 and 180.0403 (2), (3), (3m) and (4) (b) apply to cooperatives, with the word “cooperative” substituted for the words “corporate” and “corporation”.

185.045 History History: 1985 a. 338; 1989 a. 303; 1993 a. 331; 2021 a. 258.

185.05 185.05 Articles.

185.05(1) (1) The articles shall set forth:

185.05(1)(a) (a) The name of the cooperative.

185.05(1)(b) (b) The period of existence, unless perpetual.

185.05(1)(c) (c) The purposes for which organized. It is sufficient to state that the cooperative may engage in any activity within the purposes for which cooperatives may be organized, and all such activities shall then be deemed within its purposes, subject to express limitations.

185.05(1)(d) (d) Whether the cooperative is organized with or without capital stock.

185.05(1)(e) (e) The designation of classes of members, if more than one.

185.05(1)(f) (f) The number and par value of shares of each authorized class of stock; if more than one class is authorized, the designation, preferences, limitations and relative rights of each class shall also be set forth.

185.05(1)(g) (g) Which classes of stock are membership stock.

185.05(1)(h) (h) As to each class of stock, the rate of dividend, or that the rate of dividend may be fixed by the board, or that no dividend will be paid. If the dividend on any class of stock is to be cumulative, this shall also be stated.

185.05(1)(i) (i) Any reservation of a right to acquire or recall any stock.