180.1106 Effect of merger or share exchange.
(1) All of the following occur when a merger takes effect:
(a) Every other business entity that is party to the merger merges into the surviving business entity, and the separate existence of every business entity that is a party to the merger, except the surviving business entity, ceases.
(am)
1. If, under the laws applicable to a business entity that is a party to the merger, one or more of the owners thereof is liable for the debts and obligations of such business entity, such owner or owners shall continue to be liable for the debts and obligations of the business entity, but only for such debts and obligations accrued during the period or periods in which such laws are applicable to such owner or owners.
2. If, under the laws applicable to the surviving business entity, one or more of the owners thereof is liable for the debts and obligations of such business entity, the owner or owners of a business entity that is party to the merger, other than the surviving business entity, who become subject to such laws shall be liable for the debts and obligations of the surviving business entity to the extent provided in such laws, but only for such debts and obligations accrued after the merger. The owner or owners of the surviving business entity prior to the merger shall continue to be liable for the debts and obligations of the surviving business entity to the extent provided in subd. 1.
3. This paragraph does not affect liability under any taxation laws.
(b) The title to all property owned by each business entity that is party to the merger is vested in the surviving business entity without reversion or impairment.
(c) The surviving business entity has all liabilities of each business entity that is party to the merger.
(d) A civil, criminal, administrative, or investigatory proceeding pending by or against any business entity that is a party to the merger may be continued as if the merger did not occur, or the surviving business entity may be substituted in the proceeding for the business entity whose existence ceased.
(e) The articles of incorporation, articles of organization, certificate of limited partnership, or other similar governing document, whichever is applicable, of the surviving business entity shall be amended to the extent provided in the plan of merger.
(f) The shares or other interests of each business entity that is party to the merger that are to be converted into shares, interests, obligations, or other securities of the surviving business entity or any other business entity or into cash or other property are converted, and the former holders of the shares or interests are entitled only to the rights provided in the articles of merger or to their rights under ss. 180.1301 to 180.1331 or otherwise under the laws applicable to each business entity that is party to the merger.
(2) When a share exchange takes effect, the shares of each acquired corporation are exchanged as provided in the plan, and the former holders of the shares are entitled only to the exchange rights provided in the articles of share exchange or to their rights under ss. 180.1301 to 180.1331.
(3)
(a) When a merger or share exchange under this section takes effect, the department is the agent of any surviving foreign business entity of a merger or any acquiring foreign business entity in a share exchange, for service of process in a proceeding to enforce any obligation or the rights of dissenting shareholders or other owners of each domestic business entity that is a party to the merger or share exchange.
(b) When a merger or share exchange under this section takes effect, any surviving foreign business entity of a merger or any acquiring foreign business entity in a share exchange shall promptly pay to the dissenting shareholders of each domestic corporation or dissenting owners of each other domestic business entity that is a party to the merger or share exchange the amount, if any, to which they are entitled under ss. 180.1301 to 180.1331 or under any law applicable to such other domestic business entity.
History: 1989 a. 303; 2001 a. 44, 105; 2005 a. 476.
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.
The Conveyance Glitch in the Next Economy Law. Boatwright. Wis. Law. July 2003.