2023 Wisconsin Statutes & Annotations › Chapter 180 - Business corporations. › 180.1106 - Effect of merger or interest exchange.

180.1106
Effect of merger or interest exchange.
(1)
When a merger becomes effective, all of the following apply:
(a)
Each merging entity merges into the surviving entity, and the separate existence of every constituent entity that is a party to the merger, except the surviving entity, ceases.
(am)
1g.
Except as provided in this paragraph, no interest holder shall have interest holder liability with respect to any of the constituent entities.
1m.
If, under the governing law of the constituent entity, one or more of the interest holders thereof had interest holder liability prior to the merger with respect to the entity, such interest holder or holders shall continue to have such liability and any associated contribution or other rights to the extent provided in such governing law with respect to debts, obligations, and other liabilities of the entity that accrued during the period or periods in which such interest holder or holders had such interest holder liability.
2.
If, under the governing law of the surviving entity, one or more of the interest holders thereof will have interest holder liability after the merger with respect to the surviving entity, such interest holder or holders will have such liability and any associated contribution and other rights to the extent provided in such governing law with respect to the debts, obligations, and other liabilities of the surviving entity that accrue after the merger.
3.
This paragraph does not affect liability under any taxation laws.
(b)
The title to all property owned by each constituent entity is vested in the surviving entity without transfer, reversion, or impairment.
(c)
The surviving business entity has all debts, obligations, and other liabilities of each constituent entity.
(d)
A civil, criminal, administrative, or investigatory proceeding pending by or against any constituent entity may be continued as if the merger did not occur, or the surviving entity may be substituted in the proceeding for the constituent entity whose existence ceased.
(e)
1.
If the surviving entity preexists the merger, its organizational documents are amended to the extent, if any, provided in the plan of merger and, to the extent such amendments are to be reflected in a public record, as provided in the articles of merger.
2.
If the surviving entity is created in the merger, its organizational documents are as provided in the plan of merger and, to the extent such organizational documents are to be reflected in a public record, as provided in the articles of merger.
(f)
The interests of each constituent entity that are to be converted into interests, securities, or other obligations of the surviving entity, rights to acquire such interests or securities, money, other property, or any combination of the foregoing, are converted as provided in the plan of merger, and the former interest holders of the interests are entitled only to the rights provided to them in the plan of merger or to their rights, if any, under s. 178.1161 or 179.1161, ss. 180.1301 to 180.1331, or s. 181.1180 or 183.1061 or otherwise under the governing law of the constituent entity. All other terms and conditions of the merger also take effect.
(g)
Except as prohibited by other law or as otherwise provided in the articles and plan of merger, all of the rights, privileges, immunities, powers, and purposes of each constituent entity vest in the surviving entity.
(1m)
When an interest exchange becomes effective, all of the following apply:
(a)
1.
The interests in the acquired entity which are the subject of the interest exchange are exchanged as provided in the plan of interest exchange, and the former interest holders of those interests are entitled only to the rights provided to them under the plan of interest exchange or to their rights, if any, under s. 178.1161 or 179.1161, ss. 180.1301 to 180.1331, or s. 181.1180 or 183.1061 or otherwise under the governing law of the acquired entity. All other terms and conditions of the interest exchange also take effect.
2.
The acquiring entity becomes the interest holder of the interests which are the subject of the interest exchange as provided in the plan of interest exchange.
3.
The provisions of the organizational documents of the acquiring and acquired entity are amended to the extent, if any, provided in the plan of interest exchange and to the extent such amendments are to be reflected in a public record, as provided in the articles of interest exchange.
(b)
Except as otherwise provided in the articles and plan of interest exchange, if the acquired entity is a domestic or foreign partnership, limited liability company, or other organization subject to dissolution under its governing law, the interest exchange does not dissolve the acquired entity.
(c)
1.
Except as provided in this paragraph, no interest holder shall have interest holder liability with respect to either the acquiring or acquired entity.
2.
If, under the governing law of either entity, one or more of the interest holders thereof had interest holder liability prior to the interest exchange with respect to the entity, such interest holder or holders shall continue to have such liability and any associated contribution and other rights to the extent provided in such governing law with respect to debts, obligations, and other liabilities of the entity that accrued during the period or periods in which such interest holder or holders had such interest holder liability.
3.
If, under the governing law of either entity, one or more of the interest holders thereof will have interest holder liability after the interest exchange with respect to the entity, such interest holder or holders shall have such liability and any associated contribution and other rights to the extent provided in such governing law with respect to the debts, obligations, and other liabilities of the entity that accrue on or after the interest exchange.
4.
This paragraph does not affect liability under any taxation laws.
(2)
When an interest exchange takes effect, the interests of each acquired constituent entity are exchanged as provided in the plan of interest exchange, and the former holders of the interests are entitled only to the exchange rights provided in the articles of interest exchange or to their rights under ss. 180.1301 to 180.1331.
(3)
(a)
When a merger or interest exchange takes effect, the department is an agent of any foreign surviving entity of a merger or any acquiring foreign entity in an interest exchange, for service of process in a proceeding to enforce any obligation or the rights of interest holders, in their capacity as such, of each domestic constituent entity.
(b)
When a merger or interest exchange takes effect, any foreign surviving entity of a merger or any acquiring foreign constituent entity in an interest exchange shall timely honor the rights and obligations of interest holders under this chapter with respect to each domestic constituent or acquired entity, as applicable.
History:  1989 a. 303; 2001 a. 44, 105; 2005 a. 476; 2021 a. 258.
Sub. (1) (d) is straightforward in its requirement that a pending claim “may be continued as if the merger did not occur." The plaintiff's judicial dissolution claim, initiated prior to a merger, alleged harm to that shareholder, not to the corporation. The statute precludes a merger from operating to strip such a claimant of the right to pursue a pending action. Notz v. Everett Smith Group, Ltd., 2009 WI 30, 316 Wis. 2d 640, 764 N.W.2d 904, 06-3156.