347.183. Additional duties of secretary.
Additional duties of secretary.
347.183. In addition to the other powers of the secretary establishedin sections 347.010 to 347.187, the secretary shall, as is reasonablynecessary to enable the secretary to administer sections 347.010 to 347.187efficiently and to perform the secretary's duties, have the followingpowers including, but not limited to:
(1) The power to examine the books and records of any limitedliability company to which sections 347.010 to 347.187 apply, and it shallbe the duty of any manager, member or agent of such limited liabilitycompany having possession or control of such books and records to producesuch books and records for examination on demand of the secretary or hisdesignated employee; except that no person shall be subject to any criminalprosecution on account of any matter or thing which may be disclosed byexamination of any limited liability company books and records, which theymay produce or exhibit for examination; or on account of any other matteror thing concerning which they may make any voluntary and truthfulstatement in writing to the secretary or his designated employee. Allfacts obtained in the examination of the books and records of any limitedliability company, or through the voluntary sworn statement of any manager,member, agent or employee of any limited liability company, shall betreated as confidential, except insofar as official duty may require thedisclosure of same, or when such facts are material to any issue in anylegal proceeding in which the secretary or his designated employee may be aparty or called as witness, and, if the secretary or his designatedemployee shall, except as provided in this subdivision, disclose anyinformation relative to the private accounts, affairs, and transactions ofany such limited liability company, he shall be guilty of a class Cmisdemeanor. If any manager, member or registered agent in possession orcontrol of such books and records of any such limited liability companyshall refuse a demand of the secretary or his designated employee, toexhibit the books and records of such limited liability company forexamination, such person shall be guilty of a class B misdemeanor;
(2) The power to cancel or disapprove any articles of organization orother filing required under sections 347.010 to 347.187, if the limitedliability company fails to comply with the provisions of sections 347.010to 347.187 by failing to file required documents under sections 347.010 to347.187, by failing to maintain a registered agent, by failing to pay therequired filing fees, by using fraud or deception in effecting any filing,by filing a required document containing a false statement, or by violatingany section or sections of the criminal laws of Missouri, the federalgovernment or any other state of the United States. Thirty days beforesuch cancellation shall take effect, the secretary shall notify the limitedliability company with written notice, either personally or by certifiedmail, deposited in the United States mail in a sealed envelope addressed tosuch limited liability company's last registered agent in office, or to oneof the limited liability company's members or managers. Written notice ofthe secretary's proposed cancellation to the limited liability company,domestic or foreign, shall specify the reasons for such action. Thelimited liability company may appeal this notice of proposed cancellationto the circuit court of the county in which the registered office of suchlimited liability company is or is proposed to be situated by filing withthe clerk of such court a petition setting forth a copy of the articles oforganization or other relevant documents and a copy of the proposed writtencancellation thereof by the secretary, such petition to be filed withinthirty days after notice of such cancellation shall have been given, andthe matter shall be tried by the court, and the court shall either sustainthe action of the secretary or direct him to take such action as the courtmay deem proper. An appeal from the circuit court in such a case shall beallowed as in civil action. The limited liability company may provideinformation to the secretary that would allow the secretary to withdraw thenotice of proposed cancellation. This information may consist of, butneed not be limited to, corrected statements and documents, new filings,affidavits and certified copies of other filed documents;
(3) The power to rescind cancellation provided for in subdivision (2)of this section upon compliance with either of the following:
(a) The affected limited liability company provides the necessarydocuments and affidavits indicating the limited liability company hascorrected the conditions causing the proposed cancellation or thecancellation; or
(b) The limited liability company provides the correct statements ordocumentation that the limited liability company is not in violation of anysection of the criminal code; and
(4) The power to charge late filing fees for any filing fee requiredunder sections 347.010 to 347.187 and the power to impose civil penaltiesas provided in section 347.053. Late filing fees shall be assessed at arate of ten dollars for each thirty-day period of delinquency;
(5) (a) The power to administratively cancel an articles oforganization if the limited liability company's period of duration statedin articles of organization expires.
(b) Not less than thirty days before such administrative cancellationshall take effect, the secretary shall notify the limited liability companywith written notice, either personally or by mail. If mailed, the noticeshall be deemed delivered five days after it is deposited in the UnitedStates mail in a sealed envelope addressed to such limited liabilitycompany's last registered agent and office or to one of the limitedliability company's managers or members.
(c) If the limited liability company does not timely file an articlesof amendment in accordance with section 347.041 to extend the duration ofthe limited liability company, which may be any number of years orperpetual, or demonstrate to the reasonable satisfaction of the secretarythat the period of duration determined by the secretary is incorrect,within sixty days after service of the notice is perfected by posting withthe United States Postal Service, then the secretary shall cancel thearticles of organization by signing an administrative cancellation thatrecites the grounds for cancellation and its effective date. The secretaryshall file the original of the administrative cancellation and serve a copyon the limited liability company as provided in section 347.051.
(d) A limited liability company whose articles of organization hasbeen administratively cancelled continues its existence but may not carryon any business except that necessary to wind up and liquidate its businessand affairs under section 347.147 and notify claimants under section347.141.
(e) The administrative cancellation of an articles of organizationdoes not terminate the authority of its registered agent.
(6) (a) The power to rescind an administrative cancellation andreinstate the articles of organization.
(b) Except as otherwise provided in the operating agreement, alimited liability company whose articles of organization has beenadministratively cancelled under subdivision (5) of this section may filean articles of amendment in accordance with section 347.041 to extend theduration of the limited liability company, which may be any number orperpetual.
(c) A limited liability company whose articles of organization hasbeen administratively cancelled under subdivision (5) of this section mayapply to the secretary for reinstatement. The applicant shall:
a. Recite the name of the limited liability company and the effectivedate of its administrative cancellation;
b. State that the grounds for cancellation either did not exist orhave been eliminated, as applicable, and be accompanied by documentationsatisfactory to the secretary evidencing the same;
c. State that the limited liability company's name satisfies therequirements of section 347.020;
d. Be accompanied by a reinstatement fee in the amount of one hundreddollars, or such greater amount as required by state regulation, plus anydelinquent fees, penalties, and other charges as determined by thesecretary to then be due.
(d) If the secretary determines that the application contains theinformation and is accompanied by the fees required in paragraph (c) ofthis subdivision and that the information and fees are correct, thesecretary shall rescind the cancellation and prepare a certificate ofreinstatement that recites his or her determination and the effective dateof reinstatement, file the original articles of organization, and serve acopy on the limited liability company as provided in section 347.051.
(e) When the reinstatement is effective, it shall relate back to andtake effect as of the effective date of the administrative cancellation ofthe articles of organization and the limited liability company may continuecarrying on its business as if the administrative cancellation had neveroccurred.
(f) In the event the name of the limited liability company wasreissued by the secretary to another entity prior to the time applicationfor reinstatement was filed, the limited liability company applying forreinstatement may elect to reinstate using a new name that complies withthe requirements of section 347.020 and that has been approved byappropriate action of the limited liability company for changing the namethereof.
(g) If the secretary denies a limited liability company's applicationfor reinstatement following administrative cancellation of the articles oforganization, he or she shall serve the limited liability company asprovided in section 347.051 with a written notice that explains the reasonor reasons for denial.
(h) The limited liability company may appeal a denial ofreinstatement as provided for in subdivision (2) of this section.
(7) Subdivision (6) of this section shall apply to any limitedliability company whose articles of organization was cancelled because suchlimited liability company's period of duration stated in the articles oforganization expired on or after August 28, 2003.
(L. 1993 S.B. 66 & 20 § 359.828, A.L. 2009 H.B. 481 merged with S.B. 217)