180.1103 Action on plan of merger or share exchange.

(1) Submit to shareholders. After adopting and approving a plan of merger or share exchange, the board of directors of each corporation that is party to the merger, and the board of directors of the corporation whose shares will be acquired in the share exchange, shall submit the plan of merger, except as provided in sub. (5) and s. 180.11045 (2), or share exchange for approval by its shareholders.

(2) Meeting notice. The corporation shall notify each shareholder, whether or not entitled to vote, of the proposed shareholders' meeting in accordance with s. 180.0705, except that the notice shall be given at least 20 days before the meeting date. The notice shall also state that the purpose, or one of the purposes, of the meeting is to consider the plan of merger or share exchange and shall contain or be accompanied by a copy or summary of the plan.

(3) Required vote. Unless this chapter, the articles of incorporation or bylaws adopted under authority granted in the articles of incorporation require a greater vote or a vote by voting groups, the plan of merger or share exchange to be authorized shall be approved by each voting group entitled to vote separately on the plan by a majority of all the votes entitled to be cast on the plan by that voting group.

(4) Separate voting by voting groups. Separate voting by voting groups is required on any of the following:

(a) A plan of merger if the plan contains a provision that, if contained in a proposed amendment to articles of incorporation, would require action by one or more separate voting groups on the proposed amendment under s. 180.1004, except as provided in s. 180.1707.

(b) A plan of share exchange by each class or series of shares included in the exchange, with each class or series constituting a separate voting group.

(5) When shareholder approval of merger not required.

(a) In this subsection:

1. “Participating shares" means shares that entitle their holders to participate, without limitation, in distributions.

2. “Voting shares" means shares that entitle their holders to vote unconditionally in elections of directors.

(b) Action by the shareholders of the surviving corporation on a plan of merger is not required if all of the following conditions are satisfied:

1. The articles of incorporation of the surviving corporation will not differ, except for amendments enumerated in s. 180.1002, from its articles of incorporation before the merger.

2. Each shareholder of the surviving corporation whose shares were outstanding immediately before the effective date of the merger will hold the same number of shares, with identical designations, preferences, limitations and relative rights, immediately after.

3. The number of voting shares outstanding immediately after the merger, plus the number of voting shares issuable as a result of the merger, either by the conversion of securities issued pursuant to the merger or the exercise of rights or warrants issued pursuant to the merger, will not exceed by more than 20 percent the total number of voting shares of the surviving corporation outstanding immediately before the merger.

4. The number of participating shares outstanding immediately after the merger, plus the number of participating shares issuable as a result of the merger, either by the conversion of securities issued pursuant to the merger or the exercise of rights or warrants issued pursuant to the merger, will not exceed by more than 20 percent the total number of participating shares of the surviving corporation outstanding immediately before the merger.

(6) Merger or share exchange abandoned. After a merger or share exchange is authorized, and at any time before articles of merger or share exchange are filed, the planned merger or share exchange may be abandoned, subject to any contractual rights, without further action on the part of shareholders or other owners, in accordance with the procedure set forth in the plan of merger or share exchange or, if none is set forth, in the manner determined by the board of directors or other similar governing body of any other business entity that is a party to the merger.

History: 1989 a. 303; 1991 a. 16; 2001 a. 44; 2005 a. 476.