Chapter 180

180.0851(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:

180.0851(2)(a)1. 1. A willful failure to deal fairly with the corporation or its shareholders in connection with a matter in which the director or officer has a material conflict of interest.

180.0851(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.

180.0851(2)(a)3. 3. A transaction from which the director or officer derived an improper personal profit.

180.0851(2)(a)4. 4. Willful misconduct.

180.0851(2)(b) (b) Determination of whether indemnification is required under this subsection shall be made under s. 180.0855.

180.0851(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.

180.0851(3) (3) A director or officer who seeks indemnification under this section shall make a written request to the corporation.

180.0851(4) (4) 

180.0851(4)(a) (a) Indemnification under this section is not required to the extent limited by the articles of incorporation under s. 180.0852.

180.0851(4)(b) (b) 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 corporation, in connection with the same proceeding.

180.0851 History History: 1989 a. 303.

180.0851 Annotation Indemnification under this section is not self-executing. Certain formalities are required that prevent after-the-fact justification for taking corporate funds for personal use. Without these formalities, an officer could direct the corporation to pay funds for his own defense and only later assert that he or she had been indemnified by the corporation. Ehlinger v. Hauser, 2010 WI 54, 325 Wis. 2d 287, 785 N.W.2d 328, 07-0477.

180.0852 180.0852 Corporation may limit indemnification. A corporation’s articles of incorporation may limit its obligation to indemnify under s. 180.0851. Any provision of the articles of incorporation relating to a corporation’s power or obligation to indemnify that was in existence on June 13, 1987, does not constitute a limitation on the corporation’s obligation to indemnify under s. 180.0851. A limitation under this section applies if the first alleged act or omission of a director or officer for which indemnification is sought occurred while the limitation was in effect.

180.0852 History History: 1989 a. 303.

180.0853 180.0853 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:

180.0853(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 corporation.

180.0853(2) (2) 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. 180.0855 that indemnification under s. 180.0851 (2) is not required and that indemnification is not ordered by a court under s. 180.0854 (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.

180.0853 History History: 1989 a. 303

180.0854 180.0854 Court-ordered indemnification.

180.0854(1) (1) 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. 180.0855 (5) or for review by the court of an adverse determination under s. 180.0855 (1), (2), (3), (4) or (6). After receipt of an application, the court shall give any notice that it considers necessary.

180.0854(2) (2) The court shall order indemnification if it determines any of the following:

180.0854(2)(a) (a) That the director or officer is entitled to indemnification under s. 180.0851 (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.

180.0854(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. 180.0851 (2).

180.0854 History History: 1989 a. 303.

180.0855 180.0855 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. 180.0851 (2) shall select one of the following means for determining his or her right to indemnification:

180.0855(1) (1) 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 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.

180.0855(2) (2) 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.

180.0855(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.

180.0855(4) (4) By an affirmative vote of shares as provided in s. 180.0725. Shares 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.

180.0855(5) (5) By a court under s. 180.0854.

180.0855(6) (6) By any other method provided for in any additional right to indemnification permitted under s. 180.0858.

180.0855 History History: 1989 a. 303.

180.0856 180.0856 Indemnification and allowance of expenses of employees and agents.

180.0856(1) (1) A corporation shall indemnify an employee who is not a director or officer of the corporation, to the extent that he or she has been successful on the merits or otherwise in defense of a proceeding, for all reasonable expenses incurred in the proceeding if the employee was a party because he or she was an employee of the corporation.

180.0856(2) (2) In addition to the indemnification required by sub. (1), a corporation may indemnify and allow reasonable expenses of an employee or agent who is not a director or officer of the corporation to the extent provided by the articles of incorporation or bylaws, by general or specific action of the board of directors or by contract.

180.0856 History History: 1989 a. 303; 1991 a. 16.

180.0857 180.0857 Insurance. A corporation may purchase and maintain insurance on behalf of an individual who is an employee, agent, director or officer of the corporation against liability asserted against or 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 corporation is required or authorized to indemnify or allow expenses to the individual against the same liability under ss. 180.0851, 180.0853, 180.0856 and 180.0858.

180.0857 History History: 1989 a. 303.

180.0858 180.0858 Additional rights to indemnification and allowance of expenses.

180.0858(1) (1) Except as provided in sub. (2), ss. 180.0851 and 180.0853 do not preclude any additional right to indemnification or allowance of expenses that a director or officer may have under any of the following:

180.0858(1)(a) (a) The articles of incorporation or bylaws.

180.0858(1)(b) (b) A written agreement between the director or officer and the corporation.

180.0858(1)(c) (c) A resolution of the board of directors.

180.0858(1)(d) (d) A resolution that is adopted, after notice, by a majority vote of all of the corporation’s voting shares then issued and outstanding.

180.0858(2) (2) 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. 180.0851 (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.

180.0858(3) (3) Sections 180.0850 to 180.0859 do not affect a corporation’s power to pay or reimburse expenses incurred by a director or officer in any of the following circumstances:

180.0858(3)(a) (a) As a witness in a proceeding to which he or she is not a party.

180.0858(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.

180.0858 History History: 1989 a. 303; 1991 a. 16.

180.0859 180.0859 Indemnification and insurance against securities law claims.

180.0859(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. 180.0850 to 180.0858.

180.0859(2) (2) Sections 180.0850 to 180.0858 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 advisors.

180.0859 History History: 1989 a. 303.

180.0860 180.0860 Statements of changes in directors or principal.

180.0860(1) (1) 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 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.

180.0860(2) (2) A director who resigns under s. 180.0807 or a principal officer who resigns under s. 180.0843 (1) may file a copy of the resignation notice with the department.

180.0860 History History: 1993 a. 323; 1995 a. 27.

subch. X of ch. 180 SUBCHAPTER X

AMENDMENT OF ARTICLES OF INCORPORATION
AND BYLAWS

180.1001 180.1001 Authority to amend articles of incorporation.

180.1001(1) (1) A corporation may amend its articles of incorporation at any time to add or change a provision that is required or permitted to be included in the articles of incorporation or to delete a provision that is not required to be included in the articles of incorporation. Whether a provision is required or permitted to be included in the articles of incorporation is determined as of the effective date of the amendment.

180.1001(2) (2) A shareholder of the corporation does not have a vested property right resulting from any provision in the articles of incorporation, including provisions relating to management, voting, control, capital structure, dividend entitlement or purpose or duration of the corporation.

180.1001 History History: 1989 a. 303.

180.1002 180.1002 Amendment of articles of incorporation by board of directors. Unless the articles of incorporation provide otherwise, the corporation’s board of directors may adopt one or more amendments to the corporation’s articles of incorporation without shareholder action:

180.1002(1) (1) To extend the duration of the corporation if it was incorporated at a time when limited duration was required by law.

180.1002(2) (2) To delete the names and addresses of the initial directors.

180.1002(3) (3) To delete the names and addresses of the incorporators.

180.1002(4) (4) To delete the name and address of a former registered agent or registered office, if a statement of change is on file with the department.

180.1002(5) (5) To change the registered agent or the registered office.

180.1002(6) (6) To change each share, whether issued or unissued, of an outstanding class into a greater number of whole shares if the corporation has only shares of that class outstanding or the aggregate preferences and relative rights of that class are not increased to the prejudice of the outstanding shares of any other class.

180.1002(7) (7) To change the corporate name by substituting the word “corporation”, “incorporated”, “company” or “limited” or the abbreviation “corp.”, “inc.”, “co.” or “ltd.”, or words or abbreviations of similar meaning in another language, for a similar word or abbreviation in the name or by adding, deleting or changing a geographical attribution for the name.

180.1002(7m) (7m) In the case of an investment company, to change the corporate name, if the investment company notifies shareholders of the change in corporate name not less than 30 days before the effective date of the change.

180.1002(8) (8) If the articles of incorporation so provide, to make a change permitted by s. 180.0602.

180.1002(8m) (8m) In the case of an investment company, to declare an indefinite number of authorized shares.

180.1002(8n) (8n) In the case of a company that is registered, or is organized for the purpose of registering, as a management investment company under 15 USC 80a-1 to 80a-64, to state that the corporation is registered or is organized for the purposes of registering as a management investment company under 15 USC 80a-1 to 80a-64.

180.1002(9) (9) To make any other change expressly permitted by this chapter to be made without shareholder action.

180.1002 History History: 1989 a. 303; 1995 a. 27, 271.

180.1003 180.1003 Amendment of articles of incorporation by board of directors and shareholders.

180.1003(1) (1) 

180.1003(1)(a) (a) The corporation’s board of directors may propose one or more amendments to the articles of incorporation for submission to shareholders.

180.1003(1)(b) (b) The board of directors may condition its submission of the proposed amendment on any basis.

180.1003(2) (2) 

180.1003(2)(a) (a) The corporation shall notify each shareholder, whether or not entitled to vote, of the proposed shareholders’ meeting in accordance with s. 180.0705, except as provided in par. (b).

180.1003(2)(b) (b) The notice shall state that the purpose, or one of the purposes, of the meeting is to consider and to act upon the proposed amendment and shall contain or be accompanied by a copy or summary of the amendment.

180.1003(3) (3) Unless this chapter, the articles of incorporation, bylaws adopted under authority granted in the articles of incorporation or, acting under sub. (1) (b), the board of directors requires a greater vote or a vote by voting groups, the amendment is adopted if approved by all of the following:

180.1003(3)(a) (a) A majority of the votes entitled to be cast on the amendment by each voting group with respect to which the amendment would create dissenters’ rights under s. 180.1302.

180.1003(3)(b) (b) The votes required by ss. 180.0725 and 180.0726 by every other voting group entitled to vote on the amendment.

180.1003 History History: 1989 a. 303; 1991 a. 16.