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directors or other officers having the management of the concerns of any private corporation organized under the laws of this state, or a majority of the stockholders of such corporation shall discover that the stock, property and effects of such corporation have been so far reduced by losses or otherwise that it will not be able to pay all just demands against the same or to afford security to those who may deal with such corporation; or whenever the stockholders holding at least two-thirds in value of all the shares of stock in said corporation shall adopt a resolution favoring a dissolution of such corporation, whether said corporation be indebted or not, or whether its stock has depreciated below par value or not, such corporation may be dissolved by a judgment or decree of the circuit court of the county in which its principal office for the transaction of its business is located, and if such office is situated in the city of St. Louis, such judgment of dissolution may be rendered by either of the circuit courts of eighth judicial circuit. And whenever, by unanimous vote of all the shareholders, a resolution shall be adopted favoring the dissolution of said corporation, after the payment of all debts, claims or bills, then said corporation may be dissolved by filing an affidavit of dissolution with the secretary of state, setting forth the above facts, and when said affidavit of dissolution is filed it shall be taken as prima facie evidence of such voluntary dissolution. (R. S. 1909, § 2996, Amended Laws 1919, p. 235.)
This section does not authorize stockholders to dissolve corporation, but merely to adopt a resolution favoring dissolution, upon which dissolution may be accomplished by judgment or decree of circuit court, application for which must be made by petition, and notice given to all persons interested in corporation by summons. Luehrmann v. Trust Co., 192 S. W. 1026.
Sec. 9757. Application for dissolution, how made-petition shall contain what.-Application for such dissolution shall be made by a petition, verified by the president and secretary or by a majority of the directors, setting forth a clear and consice statement of the reasons which induce the stockholders to desire a dissolution of the corporation. Among other things, said petition shall contain a full and true inventory of all the estate, both real and personal, in law and in equity, of such corporation, and of all the books, vouchers and securities relating thereto; also a full and true account of the capital stock of such corporation, specifying the names of the stockholders, their residence, if known, the number of shares belonging to each, the amount paid in upon such shares respectively and the amount, if any, due thereon; also all incumbrances on the property of such corporation by judgment, mortgage, pledge or otherwise, a list of all the creditors of said corporation and of all engagements entered into by said corporation, not fully satisfied or cancelled. (R. S. 1909, § 2997.)
Interested persons, appearance and summons of general notice to be published continuance. Upon the filing of such petition an order shall be made by the court, if filed in term time, or by the clerk, if filed in vacation, requiring all persons interested in such corporation to show cause, if any they have, why such corporation should not be dissolved on or before a day. or term of said court therein named. The several officers of said corporation and the various stockholders therein may enter their voluntary appearance in said court at the time of filing such petition, and all stockholders who reside in the county wherein said petition has been filed and all creditors and persons having unexecuted contracts with said corporation, and who reside in said county who do not enter their voluntary appearance in said court shall be notified by a summons, under the hand and seal of the clerk of the court, reciting the filing of said petition, its general purpose and nature, and citing them to appear in said court on a day to be named in said writ to show cause, if any they have, against such dissolution, such day being fixed not less than twenty-one days nor more than thirty days after the filing of said petition. In addition to said summons notice of a general nature and cause of said application shall be given to all other stockholders, creditors and persons having unexecuted contracts with said corporation, by publication in some newspaper of general circulation in said county once a week for three weeks consecutively, and proof of service and publication shall be made before any order is made upon such petition. The court shall have power to continue such application for service upon all interested parties from time to time, to issue new writs if necessary, according to the practice therein: Provided, that in addition to said publication, it shall be the duty of the secretary of the corporation, at least fifteen days before the day fixed by the court for the hearing of such application, to mail a copy of such notice to all stockholders nonresident of the county by depositing the same in the post office properly directed to the stockholder at his last known address. (Laws 1919, p. 223.)
Sec. 9759. Judgment of dissolution entered, where certain property not to be diverted. If upon a hearing of such application the court shall be satisfied that the prayer of such petition. can be granted without prejudice to the public welfare, or the interest of the corporators or the creditors of such corporation, it may enter a judgment or decree dissolving such corporation and direct that the president and directors or managers of said corporation shall take charge of its assets and administer them as now provided by section 9755 of the Revised Statutes of Missouri for the year 1919: Provided, that no property devoted to religious,
literary or charitable uses shall be diverted from the objects for which they were granted by means of the powers herein given to any corporation to dissolve, but the same shall be preserved by the decree of court. (R. S. 1909, § 2999.)
Sec. 9760. Copy of judgment of dissolution to be sent to secretary of state. Whenever the court shall grant such judgment of dissolution, the clerk thereof shall send a certified copy of the order of the court to the secretary of state, the expense of which shall be taxed as costs in the case, and said copy shall be filed with the incorporating papers of such company.
NOTE-If a bank or trust company, copy of judgment should be sent to bank commissioner.
When the objects of the corporation have been abandoned, or when it appears that the power to do business does not exist, then a legal dissolution may be declared. 50 A. 648. A corporation may go into voluntary liquidation, even though it is on the eve of extinction by command of the law itself. 3 A 159; 69 Mo. 611. Where a corporation is dissolved a court of equity will lay hold of the assets for the purpose of paying bona fide creditors. 41 Mo. 563; 42 Mo. 63; 149 Mo. 74. But such court will respect liens already acquired against the assets. 122 Mo. 154. Loss of property, failure to hold meetings and elect officers does not necessarily amount to a forfeiture of corporate franchise. 50 A. 648; 180 Mo. 153. Corporation is deemed to be dissolved when it ceases to do business and becomes divested of its property. 9 A 114; 43 A. 482. But such acts would not per se accomplish such dissolution. 41 Mo. 563; 65 Mo. 279; 11 A. 594; 57 Mo. 446. A corporation may dissolve by surrendering its franchise. 48 Mo. 543. A mere resolve to discontinue business is not a dissolution. 74 Mo. 286. Willful misuser or non-user by a corporation of its franchise subjects it to dissolution. 140 Mo. 539; 142 Mo. 325. 161
No one is estopped from asserting dissolution by expiration of charter. Mo. 595. The courts will not presume forfeiture. 82 A. 96. Insolvency or inability to carry out the purposes of its existence does not ipso facto work a dissolution. 170 Mo. 163. A consolidated corporation succeeds to all the rights and liabilities of the former corporation. 98 A. 227. A consolidation of two or more corporations into one is a dissolution of all of them and the formation of a new one. 106 Mo. 594. A sale of all the property in good faith without consent of all the stockholders is not void, even though it amounts to a practical dissolution. 180 Mo. 1.
Sec. 9761. Directors personally liable, when. If the directors of any corporation shall knowingly declare and pay any dividend when the corporation is insolvent, or any dividend, the payment of which would render it insolvent, they shall be jointly and severally liable for all the debts of the corporation then existing, and for all that shall be thereafter contracted as long as they shall respectively continue in office: Provided, that the amount for which they shall be liable shall not exceed the amount of such dividend, and that if any of the directors shall be absent at the time of making the dividend, or shall object thereto, and shall file their objection, in writing, with the clerk or other officer of the corporation having charge of the books, they shall be exempted from the said liability. (R. S. 1909, § 3002.)
A transfer of all the assets and the acceptance of stock certificates in another corporation, in lieu, is not declaring an illegal dividend, which renders the directors
liable. 11 A. 592; 90 Mo. 307. This section refers to debts voluntarily contracted, and does not refer to a judgment for damages caused by the negligence of an agent. 34 Mo. 573. The directors are not liable to a stockholder who is a creditor except for a debt contracted in the ordinary course of business. 19 Mo. 327; 43 Mo. 42. An officer cannot avoid personal liability for his fraudulent acts, on the plea that he was acting for the corporation. 139 Mo. 627. Dividends can be paid out of the profits only, and cannot be drawn from the capital. 172 Mo. 491. The payment of a dividend which diminishes the capital stock is a fraud upon creditors. Mo. 491.
Sec. 9762. Officers and directors personally liable, when. -If the officers and directors of any corporation shall knowingly purchase for the corporation, of which they are officers or directors, any property, real or personal, and pay therefor more than the actual value thereof, they shall be jointly and severally liable for the debts of the corporation to an amount equal to the difference between the purchase price of said property bought and the actual value thereof: Provided, that if any of the officers or directors be absent at the time of making such purchase, or shall object thereto, and shall file their objection in writing, with the clerk or other officer of the corporation having charge of the books, they shall be exempted from the said liability. (Laws 1911, p. 151.)
Sec. 9773. Records of corporation evidence, when.-The records of any company incorporated under the provisions of this chapter, or of chapter 108, or of article XV of chapter 50, or of article X of chapter 98, or copies thereof, duly authenticated by the signature of the president and secretary of such company, under the corporate seal thereof, shall be competent evidence in any suit to which such company may be a party. R. S. 1909, § 3013.)
Omission of minutes to show that any of the directors were present at meeting of the board may be supplied by parol. St. Louis Rawhide Co. v. Hill, 72 A. 142.
It is the duty of a corporation to keep a record of the minutes of the meetings of its stockholders and directors and such minutes should show the date when the meetings were held and who were present. Howard v. Strode, 242 Mo. 210, 230, 146 S. W. 792.
Sec. 9781. Name of expiring corporation may be adopted by its successor.-Whenever the charter of any corporation in this state is about to expire by limitation of time, and the stockholders of such corporation, or a majority in interest thereof, desire to incorporate under the general corporation laws of this state for the purpose of continuing the business of such expiring corporation, it shall be lawful for the new corporation to adopt the corporate name of such old corporation: Provided, that nothing herein contained shall be construed to confer upon the new corporation any property, rights, privileges or franchise enjoyed or owned by the old corporation, save and except the use of the old name. (R. S. 1909, § 3021.)
See section 9737 which provides that no certificate of incorporation or of change of name shall issue to any corporation under the same name as that of any existing Corporation, or an imitation thereof.
STATE BANKING DEPARTMENT.
BANKS, TRUST COMPANIES, SAFE DEPOSIT INSTITUTIONS, AND LOAN AND INVESTMENT COMPANIES.
Article I-State Banking Department.
III Trust Companies.
IV-Merger and Consolidation of Trust Companies.
STATE BANKING DEPARTMENT.
11673. State banking department continued. 11689. Institutions to be examined yearly11674. Bank commissioner-qualificationsfees. how appointed deputy commis- 11690. Reports from corporations and banksioners clerk-examiners, appointment, etc.
11675. Bank commissioner, deputies, clerk,
11676. Salary of bank commissioner, depu-
11678. Records, reports and papers to be preserved.
11692. Commissioner must publish list of unclaimed deposits, dividends and interest every five years.
11693. Index of persons entitled to unclaimed sums-payment to persons entitled. 11694. Approval of commissioner-filing.
11679. Secrets of office not to be divulged- 11695. Extensions of time by commissioner. 11696. Branch offices-approval or refusalcertificate.
11697. Proceedings in name of commissioner
11698. Orders of commissioner.
sion of corporation or private banker.
11680. Bank commissioner deputies and examiners not to be appointed receiver-penalty for oppression in office or neglect of duty.
11681. Bank commissioner and assistants
11682. Penalty for neglect of duty or any
11686. Commissioner as attorney to accept
11687. Revocation of authorization certifi-
11691. Unclaimed deposits, dividends and interest deposit by commissioner in trust-preference.
11704. Manner and time within which action of commissioner in taking possession may be tested.