(1971)

ROBERT C. ZIMMERMAN, Secretary of State

I am writing in response to your recent inquiry concerning certain sections of ch. 181, Stats., which relates to nonstock corporations. You have inquired whether the provisions of sec. 181.37, Stats., relating to the contents of amended articles of incorporation, must be complied with when restated articles of incorporation are filed pursuant to sec. 181.39, Stats. It is my opinion that the contents of restated articles of incorporation do not have to comply with the provisions of sec. 181.37, which relate to the contents of amended articles of incorporation.

There are five separate and essential elements to consider in analyzing the nature of both amended articles of incorporation and restated articles of incorporation of nonstock corporations. These five elements are: (1) manner of adoption. (2) manner of execution; (3) filing; (4) recording; and (5) contents of the articles. In regard to amended articles of incorporation of nonstock corporations, sec. 181.36, Stats., sets forth the manner of adoption; sec. 181.37, Stats., sets forth the manner of execution and the contents of the articles; and sec. 181.38, Stats., sets forth the requirements as to filing and recording. In regard to restated articles of incorporation of nonstock corporations, sec. 181.31 (1), Stats., states that the manner for adoption of restated articles of incorporation is to be "by action taken in the same manner as required for amendment of articles of incorporation. . . ." Section 181.39 (2), Stats., also states that restated articles are to executed, filed and recorded "in the manner prescribed in this chapter for articles of amendment." However, in regard to the final element discussed above, namely, the contents of the restated articles, sec. 181.39 (1), Stats., states that "restated articles of incorporation shall contain all the statements required by this chapter to be included in original articles of incorporation [with certain enumerated exceptions not relevant here]." Thus, sec. 181.39, Stats., contains a clear reference to sec. 181.31, Stats., which sets forth the required contents of original articles of incorporation, and not to sec. 181.37, Stats., which sets forth the required contents of amended articles of incorporation. For these reasons, it is my opinion that restated articles of incorporation of nonstock corporations need contain only those items set forth in sec. 181.31, and need not contain those items enumerated in sec. 181.37.

A further reason why the contents of restated articles of incorporation are required to be similar to original articles of incorporation and not to amended articles may be understood by viewing the nature of restated articles of incorporation. Section 181.39, Stats., pertaining to nonstock corporations is repeated nearly verbatim in sec. 180.55, Stats., pertaining to business corporations, this latter statute being created by ch. 731, Laws of 1951. One of the authors of ch. 731, Professor George Young, writing in the 1952 Wisconsin Law Review, noted that: "Restated articles are simply the original articles and all amendments put into one document, in short, the articles as amended. When executed and filed, restated articles supersede the original articles and amendments." Young, George, Some Comments on the New Wisconsin Business CorporationLaw, 1952 Wis. L. Rev. 5, 15.

RWW:BS