Chapter 180

180.0810 180.0810 Vacancy on board.

180.0810(1) (1) Unless the articles of incorporation provide otherwise, and except as provided in sub. (2), if a vacancy occurs on the board of directors, including a vacancy resulting from an increase in the number of directors, the vacancy may be filled by any of the following:

180.0810(1)(a) (a) The shareholders.

180.0810(1)(b) (b) The board of directors.

180.0810(1)(c) (c) If the directors remaining in office constitute fewer than a quorum of the board, the directors, by the affirmative vote of a majority of all directors remaining in office.

180.0810(2) (2) If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group may vote to fill the vacancy if it is filled by the shareholders, and only the remaining directors elected by that voting group may vote to fill the vacancy if it is filled by the directors.

180.0810(3) (3) A vacancy that will occur at a specific later date, because of a resignation effective at a later date under s. 180.0807 (2) or otherwise, may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs.

180.0810 History History: 1989 a. 303.

180.0811 180.0811 Compensation of directors. Unless the articles of incorporation or bylaws provide otherwise, the board of directors, irrespective of any personal interest of any of its members, may fix the compensation of directors.

180.0811 History History: 1989 a. 303.

180.0820 180.0820 Meetings.

180.0820(1) (1) The board of directors may hold regular or special meetings in or outside this state.

180.0820(2) (2) 

180.0820(2)(a) (a) Unless the articles of incorporation or bylaws provide otherwise, the board of directors may permit any or all directors to participate in a regular or special meeting of the board of directors by, or to conduct the meeting through the use of, any means of communication by which any of the following occurs:

180.0820(2)(a)1. 1. All participating directors may simultaneously hear each other during the meeting.

180.0820(2)(a)2. 2. All communication during the meeting is immediately transmitted to each participating director, and each participating director is able to immediately send messages to all other participating directors.

180.0820(2)(b) (b) If a meeting will be conducted through the use of any means described in par. (a), all participating directors shall be informed that a meeting is taking place at which official business may be transacted. A director participating in a meeting by any means described in par. (a) is deemed to be present in person at the meeting.

180.0820(3) (3) If requested by a director, minutes of any regular or special meeting shall be prepared and distributed to each director.

180.0820 History History: 1989 a. 303; 1991 a. 16.

180.0820 Note NOTE: See s. 180.0825 (4) for applicability of ss. 180.0820 to 180.0823 to committees.

180.0821 180.0821 Action without meeting.

180.0821(1) (1) Unless the articles of incorporation or bylaws provide otherwise, action required or permitted by this chapter to be taken at a board of directors’ meeting may be taken without a meeting if the action is taken by all members of the board. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and retained by the corporation.

180.0821(2) (2) Action taken under this section is effective when the last director signs the consent, unless the consent specifies a different effective date.

180.0821(3) (3) A consent signed under this section has the effect of a unanimous vote taken at a meeting at which all directors were present, and may be described as such in any document.

180.0821(4) (4) Any person, whether or not then a director, may provide, whether through instruction to an agent or otherwise, that a consent to action will be effective at a future time, including a time determined upon the happening of an event, and such consent shall be considered to have been given for purposes of this section at such effective time so long as the person is then a director and did not revoke the consent prior to that time. Any such consent shall be revocable prior to its becoming effective.

180.0821 History History: 1989 a. 303; 2021 a. 258.

180.0822 180.0822 Notice of meeting.

180.0822(1) (1) Unless the articles of incorporation or bylaws provide otherwise, regular meetings of the board of directors may be held without notice of the date, time, place or purpose of the meeting.

180.0822(2) (2) Except as provided in s. 180.0303 (3), and unless the articles of incorporation or bylaws provide for a longer or shorter period, special meetings of the board of directors shall be preceded by at least 48 hours’ notice of the date, time and place of the meeting. The notice shall comply with s. 180.0141. The notice need not describe the purpose of the special meeting unless required by the articles of incorporation or bylaws.

180.0822 History History: 1989 a. 303.

180.0823 180.0823 Waiver of notice.

180.0823(1) (1) A director may waive any notice required by this chapter, the articles of incorporation or bylaws before or after the date and time stated in the notice. Except as provided by sub. (2), the waiver shall be in writing, signed by the director entitled to the notice and retained by the corporation.

180.0823(2) (2) A director’s attendance at or participation in a meeting waives any required notice to him or her of the meeting unless the director at the beginning of the meeting or promptly upon his or her arrival objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.

180.0823 History History: 1989 a. 303.

180.0824 180.0824 Quorum and voting.

180.0824(1) (1) 

180.0824(1)(a) (a) Unless the articles of incorporation or bylaws require a greater or, under sub. (2), a lesser number, and except as provided in ss. 180.0303 (3) (b) and 180.0831 (4), a quorum of a board of directors shall consist of a majority of the number of directors specified in or fixed in accordance with the articles of incorporation or bylaws.

180.0824(1)(b) (b) Unless the articles of incorporation or bylaws require a greater or, under sub. (2), a lesser number, and except as provided in ss. 180.0303 (3) (b) and 180.0831 (4), a quorum of a committee of the board of directors created under s. 180.0825 shall consist of a majority of the number of directors appointed to serve on the committee.

180.0824(2) (2) 

180.0824(2)(a) (a) The articles of incorporation or bylaws may authorize a quorum of a board of directors to consist of no fewer than one-third of the number of directors specified in or fixed in accordance with the articles of incorporation or bylaws.

180.0824(2)(b) (b) The articles of incorporation or bylaws may authorize a quorum of a committee of the board of directors created under s. 180.0825 to consist of no fewer than one-third of the number of directors appointed to serve on the committee.

180.0824(3) (3) Except as provided in ss. 180.0825 (3), 180.0831 (4) and 180.0855 (1) and (2), if a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the board of directors or a committee of the board of directors created under s. 180.0825, unless the articles of incorporation or bylaws require the vote of a greater number of directors.

180.0824(4) (4) 

180.0824(4)(a) (a) Except as provided in par. (b), a director who is present and is announced as present at a meeting of the board of directors or a committee of the board of directors created under s. 180.0825, when corporate action is taken assents to the action taken unless any of the following occurs:

180.0824(4)(a)1. 1. The director objects at the beginning of the meeting or promptly upon his or her arrival to holding the meeting or transacting business at the meeting.

180.0824(4)(a)2. 2. The director dissents or abstains from an action taken and minutes of the meeting are prepared that show the director’s dissent or abstention from the action taken.

180.0824(4)(a)3. 3. The director delivers written notice that complies with s. 180.0141 of his or her dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation immediately after adjournment of the meeting.

180.0824(4)(a)4. 4. The director dissents or abstains from an action taken, minutes of the meeting are prepared that fail to show the director’s dissent or abstention from the action taken and the director delivers to the corporation a written notice of that failure that complies with s. 180.0141 promptly after receiving the minutes.

180.0824(4)(b) (b) A director who votes in favor of action taken may not dissent or abstain from that action.

180.0824 History History: 1989 a. 303; 1991 a. 16; 2005 a. 476.

180.0825 180.0825 Committees.

180.0825(1) (1) Unless the articles of incorporation or bylaws provide otherwise, a board of directors may create one or more committees, appoint members of the board of directors to serve on the committees and designate other members of the board of directors to serve as alternates. Each committee shall have at least one member. Unless otherwise provided by the board of directors, members of the committee shall serve at the pleasure of the board of directors.

180.0825(2) (2) Except as provided in sub. (3), the creation of a committee, appointment of members to it, and designation of alternate members, if any, shall be approved by the number of directors required by the articles of incorporation or bylaws to take action under s. 180.0824 (3).

180.0825(3) (3) The board of directors may provide by resolution that any vacancies on the committee shall be filled by the affirmative vote of a majority of the remaining committee members.

180.0825(4) (4) Sections 180.0820 to 180.0823 apply to committees of a board of directors and to committee members.

180.0825(5) (5) To the extent specified by the board of directors or in the articles of incorporation or bylaws, each committee may exercise the authority of the board of directors, except that a committee may not do any of the following:

180.0825(5)(am) (am) Approve or recommend to shareholders for approval any action or matter expressly required by this chapter to be submitted to shareholders for approval.

180.0825(5)(bm) (bm) Adopt, amend, or repeal any bylaw of the corporation.

180.0825(6) (6) Unless otherwise provided by the board of directors in creating the committee, a committee may employ counsel, accountants and other consultants to assist it in the exercise of authority.

180.0825(7) (7) The creation of a committee, delegation of authority to a committee or action by a committee does not relieve the board of directors or any of its members of any responsibility imposed upon the board of directors or its members by law.

180.0825 History History: 1989 a. 303; 2005 a. 476.

180.0826 180.0826 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, valuation reports any of which may be written or oral, formal or informal, including financial statements, valuation reports and other financial data, if prepared or presented by any of the following:

180.0826(1) (1) 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.

180.0826(2) (2) Legal counsel, certified public accountants licensed or certified under ch. 442, or other persons as to matters that the director or officer believes in good faith are within the person’s professional or expert competence.

180.0826(3) (3) 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.

180.0826 History History: 1989 a. 303; 2001 a. 16.

180.0827 180.0827 Consideration of interests in addition to shareholders’ 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 shareholders, consider the following:

180.0827(1) (1) The effects of the action on employees, suppliers and customers of the corporation.

180.0827(2) (2) The effects of the action on communities in which the corporation operates.

180.0827(3) (3) Any other factors that the director or officer considers pertinent.

180.0827 History History: 1989 a. 303.

180.0828 180.0828 Limited liability of directors.

180.0828(1) (1) Except as provided in sub. (2), a director is not liable to the corporation, its shareholders, or any person asserting rights on behalf of the corporation or its shareholders, 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, unless the person asserting liability proves that the breach or failure to perform constitutes any of the following:

180.0828(1)(a) (a) A willful failure to deal fairly with the corporation or its shareholders in connection with a matter in which the director has a material conflict of interest.

180.0828(1)(b) (b) A violation of criminal law, unless the director 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.

180.0828(1)(c) (c) A transaction from which the director derived an improper personal profit.

180.0828(1)(d) (d) Willful misconduct.

180.0828(2) (2) A corporation may limit the immunity provided under this section by its articles of incorporation. A limitation under this subsection applies if the cause of action against a director accrues while the limitation is in effect.

180.0828 History History: 1989 a. 303.

180.0828 Annotation Wisconsin’s business judgment rule is codified in this section. The business judgment rule is substantive law because acts of the board of directors done in good faith and in the honest belief that its decisions were in the best interest of the company cannot form the basis for a legal claim against directors. It is also procedural because it limits judicial review of internal corporate business decisions made in good faith. The rule creates an evidentiary presumption that the acts of the board of directors were done in good faith and in the honest belief that its decisions were in the best interest of the company. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, 356 Wis. 2d 665, 849 N.W.2d 693, 12-1967.

180.0828 Annotation In order to fall outside of the protection that this section grants directors, plaintiffs must plead facts that create a plausible claim that the directors’ acts were taken in contravention of sub. (1). To survive a motion to dismiss, plaintiffs must plead facts sufficient to plausibly show that the directors’ actions constitute: 1) a willful failure to deal fairly with the minority shareholders on a matter in which the director has a material conflict of interest; 2) receipt of an improper personal profit; or 3) willful misconduct. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, 356 Wis. 2d 665, 849 N.W.2d 693, 12-1967. See also Cattau v. National Insurance Services of Wisconsin, Inc., 2019 WI 46, 386 Wis. 2d 515, 926 N.W.2d 756, 16-0493.

180.0828 Annotation The Business Judgment Rule in Wisconsin. Davis. 2015 WLR 475.

180.0828 Annotation Protecting Corporate Directors: Wisconsin’s Business Judgment Rule. Davis. Wis. Law. June 2015.

180.0831 180.0831 Director conflict of interest.

180.0831(1) (1) In this section, “conflict of interest transaction” means a transaction with the corporation in which a director of the corporation has a direct or indirect interest.

180.0831(2) (2) A conflict of interest transaction is not voidable by the corporation solely because of the director’s interest in the transaction if any of the following is true:

180.0831(2)(a) (a) The material facts of the transaction and the director’s interest were disclosed or known to the board of directors or a committee of the board of directors and the board of directors or committee authorized, approved or specifically ratified the transaction under sub. (4).

180.0831(2)(b) (b) The material facts of the transaction and the director’s interest were disclosed or known to the shareholders entitled to vote and they authorized, approved or specifically ratified the transaction under sub. (5).

180.0831(2)(c) (c) The transaction was fair to the corporation.