If all shares are not accepted for purchase by shareholders under subd. 3.
, the remaining shares shall be allocated among shareholders who are willing to purchase the shares in proportion to their ownership of shares of the corporation before the acquisitions under subd. 3.
The corporation must deliver written notice of an offer to purchase approved by the shareholders or written notice that no offer to purchase was approved, to the person exercising rights under this section, within 75 days after receipt of the notice under par. (a)
soliciting the offer to purchase. The notice must comply with s. 180.0141
. An offer to purchase must be accompanied by copies of the corporation's balance sheets as of the end of, and profit and loss statements for, its preceding 2 accounting years and any available interim balance sheet and profit and loss statement.
To the extent that the price and other terms for purchasing shares of a transferring shareholder by the corporation or remaining shareholders are fixed or are to be determined under provisions in the articles of incorporation or bylaws of the corporation, or by written agreement, those provisions are binding, except as provided in subd. 2.
In the event of a default in any payment due, sub. (4) (e)
applies, and the person exercising rights under this section may petition for dissolution of the corporation.
A person exercising rights under this section must accept or reject an offer to purchase in writing within 15 days after the offer.
If an offer to purchase is rejected, or if no offer to purchase is made, the person exercising rights under this section may commence an action in the circuit court for the county where the corporation's principal office or, if none in this state, its registered office is located to compel purchase or dissolution. The statutory close corporation shall be made a party defendant and shall, at its expense, give notice of the commencement of the action to all of its shareholders and other persons as the court may direct.
The court shall, under s. 180.1833 (3)
, determine the fair value of the shares of the person exercising rights under this section and enter an order requiring the corporation to cause the purchase of the shares at fair value and on other terms determined by the court or to give the person the right to have the corporation dissolved.
Upon the petition of the corporation, the court may modify its decree to change the terms of payment if it finds that the changed financial or legal ability of the corporation or other purchasers of the shares to complete the purchase justifies a modification.
A person making a payment to prevent or cure a default by the corporation or other purchaser is entitled to recover the excess payment from the defaulting person.
If the corporation or other purchaser fails to make a payment specified in the court order within 30 days after it is due, the court shall, upon the petition of the person to whom the payment is due and in the absence of good cause shown by the corporation, enter an order dissolving the corporation.
The court may assess all or a portion of the costs and expenses of an action commenced under sub. (4)
Against the person exercising rights under this section if the fair value of the shares as determined by the court does not materially exceed the last offer made by the statutory close corporation before the person commenced the action under sub. (4)
and the court finds that the failure of the person to accept the corporation's last offer was arbitrary, vexatious or not otherwise in good faith.
Against the corporation if the fair value of the shares as determined by the court materially exceeds the amount of the last offer made by the corporation before an action was commenced under sub. (4)
and the court finds that the corporation's last offer was arbitrary, vexatious or otherwise not made in good faith.
Expenses assessable under par. (a)
include reasonable compensation for, and reasonable expenses of, appraisers appointed by the court and the reasonable fees and expenses of counsel for, and experts employed by, any party.
Except as provided in par. (a)
, the legal costs of an action filed under sub. (4)
shall be assessed on an equal basis between the corporation and the party exercising rights under this section, and all other fees and expenses shall be borne by the party incurring the fees and expenses.
(6) Shareholder waiver.
A shareholder may, by signed writing, waive the rights under this section of the shareholder and the shareholder's estate and heirs.
(7) Other agreements and remedies.
This section does not prohibit other agreements for the purchase of shares of the corporation, nor does it prevent the enforcement of other remedies.
History: 1989 a. 303
Shareholder option to dissolve corporation. 180.1831(1)(1)
The articles of incorporation of a statutory close corporation or a shareholders' agreement under s. 180.1823
may grant to any shareholder, or to the holders of any specified number or percentage of shares of any class or series, an option to have the corporation dissolved at will or upon the occurrence of any specified event or contingency. The shareholders exercising the option shall give written notice of the intent to dissolve to all other shareholders. Any notice given under this subsection shall comply with s. 180.0141
. Upon the expiration of 30 days after the effective date of the notice, the corporation shall do all of the following:
File articles of dissolution that satisfy s. 180.1403
except the statement under s. 180.1403 (1) (c)
shall specify that dissolution was authorized in accordance with this section.
Unless the articles of incorporation provide otherwise, an amendment to the articles of incorporation to include, modify or delete a provision authorized by sub. (1)
must be approved by the holders of all of the outstanding shares, whether or not the holders are otherwise entitled to vote on amendments, or, if no shares have been issued, by all of the subscribers for shares, if any, or, if none, by all of the incorporators.
History: 1989 a. 303
Power of court to grant relief. 180.1833(1)(1)
Grounds for relief.
Subject to sub. (4) (b)
, a shareholder of record, the beneficial owner of shares held by a nominee or the holder of voting trust certificates of a statutory close corporation may petition the circuit court for the county where the corporation's principal office or, if none in this state, its registered office is located for relief on any of the following grounds:
That the directors or those in control of the corporation have acted, are acting or will act in a manner that is illegal, oppressive, fraudulent or unfairly prejudicial to the petitioner in his or her capacity as a shareholder, director or officer of the corporation.
That the directors or those in control of the corporation are so divided respecting the management of the corporation's affairs that the votes required for action cannot be obtained and the shareholders are unable to break the deadlock, with the consequence that the corporation is suffering or will suffer irreparable injury or that the business and affairs of the corporation can no longer be conducted to the advantage of the shareholders generally.
If the court finds that one or more of the conditions specified in sub. (1)
exist, it shall grant appropriate relief, including any of the following:
Canceling, altering or enjoining any resolution or other act of the statutory close corporation.
Directing or prohibiting any act of the corporation or of shareholders, directors, officers or other persons who are party to the action.
Canceling or altering the articles of incorporation or bylaws of the corporation.
Removing from office any director or officer, or ordering that a person be appointed a director or officer.
Requiring an accounting with respect to any matters in dispute.
Appointing a receiver to manage the business and affairs of the corporation.
Appointing a provisional director who shall have all of the rights, powers and duties of a duly elected director and shall serve for the term and under the conditions established by the court.
If the court finds that it cannot order appropriate relief, ordering that the corporation be liquidated and dissolved unless either the corporation or one or more of the remaining shareholders purchase all of the shares of the petitioning shareholder at their fair value by a designated date, with the fair value and terms of the purchase to be determined under sub. (3)
Ordering dissolution if the court finds that one or more grounds exist for judicial dissolution under s. 180.1430 (2)
or that all other relief ordered by the court has failed to resolve the matters in dispute.
Awarding damages to any aggrieved party in addition to, or in lieu of, any other relief granted.
In determining whether to grant relief under par. (a) 9.
, the court shall consider the financial condition of the corporation but may not refuse to order liquidation solely on the grounds that the corporation has net worth or current operating profits.
If the court determines that a party to a proceeding brought under this section has acted arbitrarily, vexatiously or in bad faith, it may award reasonable expenses, including attorney fees and the costs of any appraisers or other experts, to one or more of the other parties.
Determine the fair value of the shares to be purchased, considering the going concern value of the statutory close corporation, any agreement among the shareholders fixing a price or specifying a formula for determining the value of the corporation's shares for any purpose, the recommendations of any appraisers appointed by the court, any legal constraints on the corporation's ability to acquire the shares to be purchased and other relevant evidence.
The identity of the purchaser by name and the purchaser's status as a current shareholder or 3rd-party purchaser.
The terms of the purchase found to be proper under the circumstances, including payment of the purchase price in installments, payment of interest on the installments, subordination of the obligation to the rights of the corporation's other creditors, security for the deferred purchase price, and a covenant not to compete or other restriction on the selling shareholder.
Order the selling shareholder to deliver all of his or her shares to the court, and order the purchaser to deliver each payment for shares to the court.
Order that after the selling shareholder delivers his or her shares, the shareholder has no rights or claims against the corporation or its directors, officers or shareholders by reason of having been a director, officer or shareholder of the corporation, except the right to receive the unpaid balance of the amount awarded under this section and any amounts due under any agreement with the corporation or the remaining shareholders that are not terminated by the court's orders.
Order dissolution of the corporation if the purchase is not completed as ordered.
If the share purchase is not consummated and the corporation is dissolved, a shareholder whose shares were to be purchased has the same rights and priorities in the corporation's assets as if the sale had not been ordered.
Except as provided in pars. (b)
, the rights of a shareholder to commence a proceeding under this section are in addition to, and not in lieu of, any other rights or remedies that the shareholder may have.
If a shareholder has agreed in writing to pursue a nonjudicial remedy to resolve disputed matters, the shareholder may not commence a proceeding under this section with respect to those matters until he or she has exhausted the nonjudicial remedy.
If a shareholder has dissenters' rights under this subchapter or s. 180.1302
with respect to proposed corporate action, the shareholder must commence a proceeding under this section before the shareholder is required to give notice of his or her intent to demand payment under s. 180.1321
or to demand payment under s. 180.1323
or the proceeding is barred.
History: 1989 a. 303
Corporate Control Contests: Judicial Dissolution of Closely Held Corporations. Laufer. Wis. Law. Feb. 1994.
Greater quorum or voting requirements. 180.1834(1)(1)
The articles of incorporation of a statutory close corporation may impose a greater quorum or voting requirement for shareholders, or classes of shareholders, than is required by this chapter.
An action by shareholders to adopt an amendment to the articles of incorporation that adds, changes or deletes a greater quorum or voting requirement must meet the same quorum requirement and be adopted by the same vote required to take action under the largest of the greater quorum or voting requirements then in effect or proposed to be added, changed or deleted.
History: 1989 a. 303
The failure of a statutory close corporation to observe usual corporate formalities or requirements relating to the exercise of its corporate powers or the management of its business and affairs is not grounds for imposing personal liability on the shareholders for obligations of the corporation.
History: 1989 a. 303
Officers; execution of documents. 180.1837(1)(1)
A statutory close corporation may operate and conduct business with one or more officers.
If an individual holds more than one office in a statutory close corporation, the individual may execute, acknowledge or verify in more than one capacity any instrument required to be executed, acknowledged or verified by the holders of 2 or more offices.
History: 1989 a. 303
“Employee" means an individual who is hired by a service corporation and who is usually and ordinarily considered by custom, practice or law to be rendering professional or other personal services for which a license, certificate, registration or other legal authorization is required. “Employee" does not include any of the following:
An individual who is hired by a service corporation and who provides services as an administrator, technician, clerk or bookkeeper.
An individual who performs all of his or her employment for a service corporation under the direct supervision and control of a licensed, registered or certified officer or employee of the service corporation.
“Health care professional" means an individual who is licensed, registered or certified by any of the following:
The massage therapy and bodywork therapy affiliated credentialing board under ch. 460