Section 359.681

Title XXIII CORPORATIONS, ASSOCIATIONS AND PARTNERSHIPS

Chapter 359

Effective - 28 Aug 2009   

  359.681.  Powers and authority of secretary of state — examination of books and records — failure to exhibit, penalty — cancellation or disapproval of certificate, when, notice, appeal in circuit court — petition for appeal, filed when — rescission of cancellation — late filing fees, penalty. — In addition to the power and authority given the secretary of state by this chapter, the secretary of state or his designee shall have such further authority as is reasonably necessary to enable the secretary of state to administer this chapter efficiently and to perform the secretary of state's duties.  This authority shall consist of, but is not limited to, the following powers:

  (1)  (a)  The power to examine the books and records of any limited partnership to which this chapter applies, and it shall be the duty of any general partner or agent of such limited partnership to produce such books and records for examination on demand of the secretary of state or designated employee; provided, that no person shall be subject to any criminal prosecution on account of any matter or thing which may be disclosed by the examination of any limited partnership books, or records, which they may produce or exhibit for examination; or on account of any matter or thing concerning which they may make any voluntary and truthful statement in writing to the secretary of state, or designated employee.  All facts obtained in the examination of the books and records of any limited partnership, or through voluntary sworn statement of any partner, agent, or employee of any limited partnership, shall be treated as confidential, except insofar as official duty may require the disclosure of same; or when such facts are material to any issue in any legal proceeding in which the secretary of state or designated employee may be a party or called as a witness, and, if the secretary of state or designated employee shall, except as herein provided, disclose any information relative to the private accounts, affairs, and transactions of any such limited partnership, he shall be deemed guilty of a class C misdemeanor.

  (b)  If any general partner, or registered agent, of any such limited partnership shall refuse the demand of the secretary of state, or designated employee, to exhibit the books and records of such limited partnership for examination, he, or they, shall be deemed guilty of a class B misdemeanor.

  (2)  (a)  The power to cancel or disapprove any certificate of limited partnership or other filing required under this chapter, if the limited partnership fails to comply with the provisions of this chapter by failing to file required documents under this chapter by failing to maintain a registered agent, by failing to pay the required filing fees, by using fraud or deception in effecting any filing, by filing a required document containing a false statement, or by violating any section or sections of the criminal laws of Missouri, the federal government or any other state of the United States.  Thirty days before such cancellation shall take effect, the secretary of state shall notify the limited partnership with written notice, either personally or by mail.  If mailed, the notice shall be deemed delivered five days after it is deposited in the United States mail in a sealed envelope addressed to such limited partnership's last registered agent and office or to one of the limited partnership's general partners.  The written notice of the secretary of state's proposed cancellation to the limited partnership, domestic or foreign, will specify the reasons for such action.

  (b)  The limited partnership may appeal this notice of proposed cancellation to the circuit court of the county in which the registered office of such limited partnership is or is proposed to be situated by filing with the clerk of such court a petition setting forth a copy of the certificate of limited partnership or other relevant documents and a copy of the proposed written cancellation thereof by the secretary of state, such petition to be filed within thirty days after notice of such cancellation shall have been given, and the matter shall be tried by the court, and the court shall either sustain the action of the secretary of state or direct him to take such action as the court may deem proper.  An appeal from the circuit court in such a case shall be allowed as in civil action.

  (c)  The limited partnership may provide information to the secretary of state that would allow the secretary of state to withdraw the notice of proposed cancellation.  This information may consist of, but need not be limited to, corrected statements and documents, new filings, affidavits and certified copies of other filed documents.

  (3)  The power to rescind a cancellation provided for in subsection 2 of this section upon compliance with either of the following:

  (a)  The affected limited partnership provides the necessary documents and affidavits indicating the limited partnership has corrected the conditions causing the proposed cancellation or the cancellation;

  (b)  The limited partnership provides the correct statements or documentation that the limited partnership is not in violation of any section of the criminal code.

  (4)  The power to charge late filing fees for any filing fee required under this chapter.  Late filing fees shall be assessed at a rate of ten dollars for each thirty-day period of delinquency.

  (5)  (a)  The power to administratively cancel a certificate of limited partnership if the limited partnership's period of duration stated in the certificate of limited partnership expires.

  (b)  Not less than thirty days before such administrative cancellation shall take effect, the secretary of state shall notify the limited partnership with written notice, either personally or by mail.  If mailed, the notice shall be deemed delivered five days after it is deposited in the United States mail in a sealed envelope addressed to such limited partnership's last registered agent and office or to one of the limited partnership's general partners.

  (c)  If the limited partnership does not timely file a certificate of amendment in accordance with section 359.101 to extend the duration of the limited partnership, which may be any number of years or perpetual, or demonstrate to the reasonable satisfaction of the secretary of state that the period of duration determined by the secretary of state is incorrect, within sixty days after service of the notice is perfected by posting with the United States Postal Service, then the secretary of state shall cancel the certificate of limited partnership by signing a certificate of administrative cancellation that recites the grounds for cancellation and its effective date.  The secretary of state shall file the original of the certificate and serve a copy on the limited partnership as provided in section 359.141.

  (d)  A limited partnership whose certificate of limited partnership has been administratively cancelled continues its existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs under section 359.471 and notify claimants under section 359.481.

  (e)  The administrative cancellation of a certificate of limited partnership does not terminate the authority of its registered agent.

  (6)  (a)  The power to rescind an administrative cancellation and reinstate the certificate of limited partnership.

  (b)  Except as otherwise provided in the partnership agreement, a limited partnership whose certificate of limited partnership has been administratively cancelled under subdivision (5) of this section may file a certificate of amendment in accordance with section 359.101 to extend the duration of the limited partnership, which may be any number or perpetual.

  (c)  A limited partnership whose certificate of limited partnership has been administratively cancelled under subdivision (5) of this section may apply to the secretary of state for reinstatement.  The applicant shall:

  a.  Recite the name of the limited partnership and the effective date of its administrative cancellation;

  b.  State that the grounds for cancellation either did not exist or have been eliminated, as applicable, and be accompanied by documentation satisfactory to the secretary of state evidencing the same;

  c.  State that the limited partnership's name satisfies the requirements of section 359.021;

  d.  Be accompanied by a reinstatement fee in the amount of one hundred dollars, or such greater amount as required by state regulation, plus any delinquent fees, penalties, and other charges as determined by the secretary of state to then be due.

  (d)  If the secretary of state determines that the application contains the information and is accompanied by the fees required in paragraph (c) of this subdivision and that the information and fees are correct, the secretary of state shall rescind the certificate of administrative cancellation and prepare a certificate of reinstatement that recites his or her determination and the effective date of reinstatement, file the original of the certificate, and serve a copy on the limited partnership as provided in section 359.141.

  (e)  When the reinstatement is effective, it shall relate back to and take effect as of the effective date of the administrative cancellation of the certificate of limited partnership and the limited partnership may continue carrying on its business as if the administrative cancellation had never occurred.

  (f)  In the event the name of the limited partnership was reissued by the secretary of state to another entity prior to the time application for reinstatement was filed, the limited partnership applying for reinstatement may elect to reinstate using a new name that complies with the requirements of section 359.021 and that has been approved by appropriate action of the limited partnership for changing the name thereof.

  (g)  If the secretary of state denies a limited partnership's application for reinstatement following administrative cancellation of the certificate of limited partnership, he or she shall serve the limited partnership as provided in section 359.141 with a written notice that explains the reason or reasons for denial.

  (h)  The limited partnership may appeal a denial of reinstatement as provided for in paragraph (b) of subdivision (2) of this section.

  (7)  Subdivision (6) of this section shall apply to any limited partnership whose certificate of limited partnership was cancelled because such limited partnership's period of duration stated in the certificate of limited partnership expired on or after August 28, 2003.

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(L. 1985 H.B. 512 & 650, A.L. 2009 H.B. 481 merged with S.B. 217)