Article

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Strategic Shareholder and Member Voting Agreements

Under Texas Business Entity Law

Val Ricks*

I. Introduction ............................................................................335

A. The Topic ........................................................................335

B. A Policy Baseline ............................................................335

C. The Texas Position ..........................................................338

D. Road Map and Thesis ......................................................345

II. The Cases (and the Statute): What Works and What Does

Not..........................................................................................346

A. The Earliest Baseline: Withers v. Edwards (1901) —

Works ..............................................................................346

B. Departing from the Strait and Narrow: Roberts v.

Whitson (1945) —Does Not Work ..................................347

C. The Statute: Round One —May Work ............................357

D. A Return to the Path: Burnett v. Word, Inc. (1967) —

Works ..............................................................................361

E. Building a Hedge by the Path: Irwin v. Prestressed

Structures, Inc. (1967) —Works .....................................364

F. Another (Broken) Hedge Along the Path: R.H.

Sanders Corp. v. Haves (1976) (Haves) ..........................366

G. A Bridge to Nowhere: Sanders v. McMullen (April 5,

1989) —Does Not Work .................................................371

III. The Amended Statute: The Road Home ................................376

A. The 1989 Amendment—Probably Works .......................376

B. Today’s Iteration, TBOC § 6.252—Works Even Better .383

C. Residual Policy Concerns................................................387

1. Harmony with Other Law ..........................................387

*Charles Weigel II Research Professor and Professor of Law, South Texas College of Law.

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a. Texas Case Law. ..................................................387

b. Other States’ Statutes. ..........................................388

c. Voting Agreement Policy. ...................................389

d. Voting Trusts Distinguished. ...............................390

2. Prejudice to Other Shareholders ................................393

IV. Amendment ............................................................................394

I. INTRODUCTION

A. The Topic

Sometimes business entity owners—shareholders, LLC members, and

the like—contract to vote strategically. Often owners simply agree to pool

their votes. They might do this to form or join a controlling majority or

supermajority, or to maximize their influence on the board if the entity

allows cumulative voting.

The Texas laws governing such non-unanimous,

strategic voting agreements are the subject of this paper.

For ease of

discussion, I call units of voting power “shares” here (as in shares of voting

power) and their owners “shareholders.” The most relevant cases thus far

have involved only corporations.

B. A Policy Baseline

Perhaps the most famous example of vote pooling, and the one most

studied in law school classrooms, is the case of Ringling Bros.-Barnum &

Bailey Combined Shows, Inc. v. Ringling.

Edith Conway Ringling (315

shares) and Aubrey Ringling Haley (315 shares) agreed to confer with each

other prior to each shareholder meeting and cast their votes together.

E.g., 13 ELIZABETH S. MILLER & ROBERT A. RAGAZZO, TEXAS PRACTICE SERIES: TEXAS

METHODS OF PRACTICE § 45:2 (3d ed. 2016).

Unanimous owner voting agreements are governed by other statutes which allow owners

and entities subject to them much greater leeway. See, e.g., TEX. BUS. ORGS. CODE ANN. § 21.101

(West Supp. 2015), § 21.714 (West 2012).

See infra Part II. The analysis would not differ if units of voting power were called

membership or partnership interests, however. The code provision at issue applies to LLCs and

partnerships as well. See, e.g., TEX. BUS. ORGS. CODE ANN. §§ 1.002(18), (62) (West 2012 &

Supp. 2015), § 6.252 (West 2012).

53 A.2d 441 (Del. 1947).

Id. at 442–43.

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this way, they could elect the board they wanted and thwart the efforts of

the only other shareholder, John Ringling North (370 shares), to dominate

the business.

The Delaware Supreme Court treated the agreement like a

contract because, after all, that is what it was. A shareholder has a right to

vote shares and, as the court noted:

Generally speaking, a shareholder may exercise wide

liberality or judgment in the matter of voting, and it is not

objectionable that his motives may be for personal profit, or

determined by whims or caprice, so long as he violates no

duty owed to his fellow shareholders . . . . The ownership

of voting stock imposes no legal duty to vote at all.

This makes perfect sense. A shareholder buys the shares for profit—for

her own personal advantage, not as a public service, nor for the benefit of

other shareholders, nor even for the business itself. The court is correct that

no legal duty exists to vote shares at all, let alone to vote in a certain way.

The next part of the court’s argument builds on this premise and is

particularly compelling:

A group of shareholders may, without impropriety, vote

their respective shares so as to obtain advantages of

concerted action. They may lawfully contract with each

other to vote in the future in such as way as they, or a

majority of their group, from time to time determine.

In other words, shareholders can agree to be legally bound to do what

they already have a right to do. If all they agree to do is vote in a way they

legally could vote in the first place even without an agreement, then there is

in general nothing wrong with their agreement. It harms no one. It is just a

contract. As between the parties, the vote pooling agreement should be

enforced as a contract.

This rationale gathers strength the more closely it is examined, for

several reasons. A vote pooling agreement adds value to shares joining it,

generally without decreasing the value of non-joining shares in any

prejudicial way. Joining such an agreement increases the voting power of

participating shareholders, a clear benefit to them that adds value to their

Id. at 443–44.

Id. at 447.

Id.

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shares. But shareholders not participating in the agreement have no less

power than they had before: non-participating shareholders’ positions are

not changed because of the agreement; non-participating shareholders have

exactly the same voting power—no less and no more than—they had before

their fellow shareholders joined a pooling agreement. Although non-

participating shareholders might complain that, whereas no one before had

the control or influence that the vote pooling agreement conferred, the

shareholders who participate in the pooling agreement could have caused

exactly the same results without the pooling agreement merely by deciding

to vote in the same way the agreement specifies.

The sole change to the rights of non-participating shareholders from the

pooling agreement is that non-participating shareholders may be deprived

of the opportunity to join in a pooling agreement with the participating

shareholders while the agreement lasts (because those in the agreement

already do not need them),

but the value of this lost opportunity is

speculative at best: on the one hand, non-participating shareholders are free

to vote with the pool if they choose. On the other hand, the loss of this

opportunity is no different than what would occur if the non-participating

shareholder lost all the individual votes that occur while the pooling

agreement lasts, and that is a risk every shareholder assumes when they buy

the shares. A vote pooling agreement thus, by itself, changes nothing of

consequence for any other shareholder and harms no one.

Of course, this rationale is limited to vote pooling. Shareholders’

agreements to do anything more than shareholders have a right to do

without the agreement might be objectionable for some reason. So, a

shareholder agreement to manage the corporation themselves (say, by

appointing officers)—a core management function generally reserved to the

entity’s governing authority

—may well be invalid as a usurpation of a

governing authority power.

Also, taking money or another advantage in

Of course, non-participating shareholders could buy into the agreement. The point of a

business is to make money, so there is a price on almost everything. People challenge voting

agreements in court when the price of buying into them, or buying the participants out, is for them

higher than the cost of a lawsuit multiplied by its probability of success, as against other uses of

their time and resources.

See, e.g., TEX. BUS. ORGS. CODE ANN. §§ 3.103, 21.417 (West 2012).

See, e.g., Grogan v. Grogan, 315 S.W.2d 34, 39 (Tex. Civ. App.—Beaumont 1958, writ

ref’d n.r.e.); Funkhouser v. Capps, 174 S.W. 897, 899 (Tex. Civ. App.—Fort Worth 1915, writ

ref’d). Of course, this would be legal if all the shareholders signed. See TEX. BUS. ORGS. CODE

ANN. § 21.101 (West 2012 & Supp. 2015), § 21.714 (West 2012).

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exchange for a vote—vote-selling—may well warrant judicial review,

though how strict this review should be is not clear.

Shareholder

agreements that involve more than just voting have been invalidated for a

variety of reasons during a century of litigation about them, and litigation

trends regarding them have come and gone.

In the words of Ringling, the

agreement must not cause or enable “the parties to take any unlawful

advantage of the outside shareholder[s], or of any other person.”

Moreover, some fiduciary or other status-based duty to a non-participant

may dictate or limit some shareholders’ rights to vote as they please,

and

this limitation, if and when it exists, would affect the legality of action

pursuant to a voting agreement.

But if it does not—if the voting

agreement is merely a promise by shareholders to do what they have every

legal right to do, namely, cast a vote as a shareholder, then it should be

upheld as a contract.

C. The Texas Position

This conclusion that contract law and contractual freedom should be at

the root of shareholder voting agreements is important because the law in

Texas regarding strategic (non-unanimous) shareholder voting agreements

E.g., 13 MILLER & RAGAZZO, supra note 1, § 45.2 n.6; Schreiber v. Carney, 447 A.2d 17,

26 (Del. Ch. 1982).

1 HODGE O’NEAL AND ROBERT B. THOMPSON, O’NEAL AND THOMPSON’S CLOSE

CORPORATIONS AND LLCS: LAW AND PRACTICE § 4:4 (rev. 3d ed. 2015).

Ringling Bros.-Barnum & Bailey Combined Shows v. Ringling, 53 A.2d 441, 447 (Del.

1947).

For instance, controlling shareholders may be held to have a fiduciary duty of some sort.

See, e.g., Ritchie v. Rupe, 443 S.W.3d 856, 887 (Tex. 2014) (“[T]here may be circumstances in

which the controlling shareholders or directors of a closely held corporation seek to artificially

deflate the shares’ value, perhaps to allow the company or its shareholders to purchase a minority

shareholder’s shares for less than their true market value, or to hinder a minority shareholder’s

sale of shares to third parties . . . . As a rule, . . . claims based on such conduct belong to the

corporation . . . .”); see also, e.g., Riebe v. National Loan Investors, L.P., 828 F. Supp. 453, 456

(N.D. Tex. 1993); 13 ELIZABETH S. MILLER & ROBERT A. RAGAZZO, TEXAS PRACTICE SERIES:

BUSINESS ORGANIZATIONS § 36:14 n.5 (3d ed. 2015); see also Portnoy v. Cryo-Cell Int’l, Inc.,

940 A.2d 43, 71–73 (Del. Ch. 2008) (Chancery’s setting aside a vote because the board made a

deal to create a new board seat shortly after an election and give it to an upstart shareholder’s

nominee in exchange for the upstart’s supporting the board and buying more shares (and thus

more votes) to support the board during that election rather than launching a proxy fight).

See also, e.g., Val Ricks, No Power to Be Disloyal (Or, How Not to Write a Loyalty

Opinion), 6 J. BUS., ENTREPRENEURSHIP & L. 247, 261 (2013).

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is conceptually disjointed and easily misunderstood. The early case law was

contradictory, both encouraging freedom of contract and attacking it.

statute first passed in 1961 and still (with some modifications) ensconced in

the Texas Business Organizations Code (TBOC) fails to clear up the case

law. The statute purports to give a permission: it provides that shareholders

“may enter into a written voting agreement to provide the manner of voting

of ownership interests.”

The statute promises “specific enforcement”

when it applies,

which presumably means that a court should order that

the bound party vote as agreed. But the statute purports to require other

things of the agreement, too: that it “shall be deposited” with the entity and

be “subject to examination” by any owner.

The statute offers the remedy

of specific enforcement “against the holder of an ownership interest that is

the subject of the agreement” if “the voting agreement is noted

conspicuously on the certificate” or a similar notation is sent by the entity if

the share is uncertificated.

In a separate section, the statute appears to

grant a remedy of specific enforcement against “any person with actual

knowledge of the existence of the agreement,”

but this section appears to

overlap the earlier one inasmuch as a holder of the ownership interest who

is also a party to the agreement always has actual knowledge. The entire

code section appears in the margin.

See infra Parts II.A & B.

TEX. BUS. ORGS. CODE ANN. § 6.252(a) (West 2012).

Id. § 6.252(c)–(d).

Id. § 6.252(b).

Id. § 6.252(c)–(e).

Id. § 6.252(d).

The current statute reads as follows:

Sec. 6.252. VOTING AGREEMENTS.

(a) Except as provided by this code or the governing documents, any number of owners

of a domestic entity, or any number of owners of the domestic entity and the domestic

entity itself, may enter into a written voting agreement to provide the manner of voting

of the ownership interests of the domestic entity. A voting agreement entered into under

this subsection is not part of the governing documents of the domestic entity.

(b) A copy of a voting agreement entered into under Subsection (a):

(1) shall be deposited with the domestic entity at the domestic entity’s

principal executive office or registered office; and

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The statute is odd. Does the statute confer enforceability, or merely add

a remedy? Must the agreement be submitted to the business entity and be

examinable by other owners for the statute to apply or to obtain the remedy

of specific enforcement? Must a notation referring to the agreement be

endorsed on the shares or otherwise noticed to shareholders? These deposit,

examination, and endorsement requirements have no basis in policy if only

the parties to the agreement are involved. Why should an agreement to do

what shareholders have a right to do require disclosure to the entity or the

other owners? Essentially, the code appears to require that strategic voting

agreements be revealed to current management. The examination

requirement in particular makes no sense as a condition of enforceability

because the corporation—not the parties to the agreement—controls it. The

same is true of the endorsement requirement for uncertificated shares: the

new holder will never learn of the agreement if the corporation fails to send

the required notice,

so it appears that the rights of the parties to the

(2) is subject to examination by an owner, whether in person or by the

owner’s agent or attorney, in the same manner as the owner is entitled to

examine the books and records of the domestic entity.

against the holder of an ownership interest that is the subject of the agreement, and any

successor or transferee of the holder, if:

(1) the voting agreement is noted conspicuously on the certificate

representing the ownership interests; or

(2) a notation of the voting agreement is contained in a notice sent by or on

behalf of the domestic entity in accordance with Section 3.205, if the

ownership interest is not represented by a certificate.

(d) Except as provided by Subsection (e), a voting agreement entered into under

Subsection (a) is specifically enforceable against any person, other than a transferee for

value, after the time the person acquires actual knowledge of the existence of the

agreement.

(e) An otherwise enforceable voting agreement entered into under Subsection (a) is not

enforceable against a transferee for value without actual knowledge of the existence of

the agreement at the time of the transfer, or any subsequent transferee, without regard to

value, if the voting agreement is not noted as required by Subsection (c).

(f) Section 6.251 [which governs voting trusts] does not apply to a voting agreement

entered into under Subsection (a).

Id. § 6.252.

See id. § 3.205.

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agreement depend on a corporate action, not on the agreement itself. It

seems the statute means to say that property-based remedies such as binding

subsequent transferees would not apply without an endorsement of the

shares. But should an otherwise binding voting agreement not bind the

parties? The statute simply fails to say what happens when an agreement

does not conform to the statute. In fact, Texas courts prior to the statute

generally enforced vote pooling agreements,

so shareholders needed no

statutory permission to enter into them. Moreover, the statute says only that

agreements to which it applies will be specifically enforced; it does not say

that, without compliance, a binding contract does not result, nor does it say

that other remedies will not apply.

One wonders what could have been the

motivation for this statute.

Interestingly, and perhaps tellingly, no other state imposes such

requirements. Texas is flying solo here. The Model Business Corporations

Act merely holds as follows:

(a) Two or more shareholders may provide for the manner

in which they will vote their shares by signing an

agreement for that purpose. A voting agreement created

under this section is not subject to the provisions of section

7.30 [as a voting trust].

(b) A voting agreement created under this section is

specifically enforceable.

The Model Act rests on freedom of contract: “The only formal

requirements are that they be in writing and signed by all the participating

shareholders; in other respects their validity is to be judged as any other

contract.”

Thirty-two states and the District of Columbia have adopted the

Model Act provision.

Another fifteen states have adopted its substance

See infra Parts II.A–E. The Texas cases are uniformly in favor except for one decision

which is impossibly reasoned and almost surely incorrect.

TEX. BUS. ORGS. CODE ANN. § 6.252.

I speculate more on that in a later section. See Part III.C.1.d.

REVISED MODEL BUS. CORP. ACT § 7.31 (AM. BAR ASS’N 2005).

Id. cmt.

The states are Alabama, Arkansas, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho,

Illinois, Indiana, Iowa, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi,

Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Oregon, South Carolina, South

Dakota, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming; the District

of Columbia follows suit. ALA. CODE § 10A-2-7.31 (2013); ARK. CODE ANN. § 4-27-731 (2001);

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and brevity, sometimes without an explicit reference to either (1) the

distinction from voting trusts, (2) specific enforcement, or (3) both, though

usually these are implied.

The Model Act provision is thus now nearly

universal law. Two states lack a statute.

And then there is Texas, which

COLO. REV. STAT. ANN. § 7-107-302 (West 2006); CONN. GEN. STAT. ANN. § 33-716 (West

2015); FLA. STAT. ANN. § 607.0731 (West 2015); GA. CODE ANN. § 14-2-731 (West 2015); HAW.

REV. STAT. ANN. § 414-162 (West 2015); IDAHO CODE ANN. § 30-29-731 (West 2015); 205 ILL.

COMP. STAT. ANN. 5/15 (West 2015); IND. CODE § 23-1-31-2 (2011); IOWA CODE ANN. § 490.731

(West 2009); KY. REV. STAT. ANN. § 271B.7-310 (West 2012); LA. STAT. ANN. § 12:1-731

(2015); MASS. GEN. LAWS ANN. ch. 156D, § 7.31 (West 2013); MICH. COMP. LAWS § 450.2461

(Supp. 2015); MINN. STAT. § 302A.455 (2011); MISS. CODE ANN. § 79-4-7.31 (2014); MONT.

CODE ANN. 35-1-533 (2015); NEB. REV. ST. § 21-2068 (2012); N.H. REV. STAT. ANN. §293-

A:7.31 (2014); N.M. STAT. ANN. § 53-11-34 (2003); N.D. CENT. CODE § 10-19.1-82 (2012); OR.

REV. STAT. § 60.257 (2011); S.C. CODE ANN. § 33-7-310 (2006); S.D. CODIFIED LAWS § 47-1A-

731 (2007); UTAH CODE ANN. § 16-10a-731 (West 2013); VT. STAT. ANN. tit. 11A, § 7.31 (2010);

VA. CODE ANN. § 13.1-671 (2011); WASH. REV. CODE § 23B.07.310 (2013); W. VA. CODE

§ 31D-7-731 (2015); WIS. STAT. ANN. § 180.0731 (West 2002); WYO. STAT. ANN. § 17-16-731

(2015).

The fifteen states are Alaska (no express specific enforcement term; distinction from voting

trust implied only); Arizona (no distinction from voting trust); California; Delaware (no express

specific enforcement term); Kansas (no express specific enforcement term); Maine (additional

term that assumes the agreement binds transferees but gives a right of rescission if the new

shareholder took without notice); Maryland (no express specific enforcement term or distinction

from voting trust); Nevada (no express specific enforcement term; distinction from voting trust

implied only); New Jersey (no express distinction from a voting trust); New York (no express

specific enforcement term or distinction from voting trust); North Carolina (no express specific

enforcement term, and with some other terms); Oklahoma (no express specific enforcement term

or distinction from voting trust; less specific enforcement; distinction from voting trust implied

only); Pennsylvania (no express specific enforcement term; distinction from voting trust implied

only); Rhode Island (no express specific enforcement term); Tennessee (adopting just what the

model code provides plus some other terms relating to management decisions by shareholders and

the effect of the agreement on transferees). ALASKA STAT. § 10.06.425 (2014); ARIZ. REV. STAT.

ANN. § 10-731 (2013); CAL. CORP. CODE § 706 (West 2014); DEL. CODE ANN. tit. 8 § 218 (West

Supp. 2014); KAN. STAT. ANN. § 17-6508 (2007); ME. REV. STAT. ANN. tit. 13-C § 742 (2005);

MD. CODE ANN., CORPS. & ASS’NS § 2-510.1 (West 2014); NEV. REV. STAT. § 78.365 (2005);

N.J. STAT. ANN. § 14A:5-21 (West 2003); N.Y. BUS. CORP. LAW § 620 (McKinney 1983 & Supp.

2015); N.C. GEN. STAT. § 55-7-31 (2015); OKL. STAT. tit. 18, § 1063 (2012); 15 PA. CONS. STAT.

§ 1768 (2013); 7 R.I. GEN. LAWS § 7-1.2-709 (Supp. 2013); TENN. CODE ANN. § 48-17-302

(2012). A few states add a time limit on the effectiveness of a shareholder voting agreement:

Georgia, Nevada, North Carolina, and Rhode Island. See GA. CODE ANN. § 14-2-731(c) (West

2015); NEV. REV. STAT. § 78.365(4)–(5) (2005); N.C. GEN. STAT. § 55-7-31(a) (2015); 7 R.I. GEN.

LAWS § 7-1.2-709(d) (Supp. 2013).

The two states are Missouri and Ohio. See 1 O’NEAL & THOMPSON, supra note 13, § 4:12

n.4 (Missouri); 7A OHIO FORMS – LEGAL AND BUSINESS § 19:380 (2015 ed.) (“no specific

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would be consistent with the Model Act except that it adds on extra

burdens. The Texas provision was enacted in 1961,

eight years before the

Model Act provision came into existence.

The Model Act drafters were

well aware of the Texas provision; the Model Act’s commentary in 1969

noted the distinctive Texas burdens.

But the Model Act rejected them, and

every other state has followed the Model Act and similarly rejected the

Texas position.

Unfortunately, the case law construing the Texas statute does not give a

straight story about its meaning.

Nor does its legislative history.

Yet if

the voting agreement is itself a contract and should be one, then the parties

to it should be bound, and applicable contract remedies should be granted in

statutory foundation for shareholder voting agreements”). Both states’ common law appears to

support shareholder agreements. See Royster v. Baker, 365 S.W.2d 496, 500 (Mo. 1963) (“It is not

wrongful for the stockholders of a corporation, who control or own a majority of the stock, to

agree among themselves to vote their stock a certain way and to change the management of the

corporation or its methods of doing business as long as their conduct does not violate the laws of

the state, the charter or bylaws of the corporation, or infringe upon contractual or other rights of

others.”); State ex rel. Babione v. Martin, 647 N.E.2d 169, 173–74 (Ohio Ct. App. 1994),

dismiss’d on appeal, 646 N.E.2d 178 (Ohio 1995) (unpublished table decision).

See infra Section II.

MODEL BUS. CORP. ACT § 34 ¶2 (AM. BAR ASS’N 1971) (amended 2002).

Id. ¶3.

See infra Part II.

For instance, the Bill Analysis of the Texas Business Organizations Code provides the

following paragraph:

Section 6.252 enables owners to enter into written voting agreements. A counterpart of

the agreement must be given to the entity and subject to the right of examination by any

owner. The agreement will be enforceable against the parties to the agreement and their

successors if the ownership certificates subject to the agreement reference the

agreement or if notice is sent to the subsequent holders. Without this information, the

agreement is ineffective against a transferee for value who does not have actual

knowledge of the agreement at the time of the transfer. However, the agreement is

enforceable against any person who is not a transferee for value once that person

acquires actual knowledge of the agreement. The provisions of this section are new for

limited liability companies.

H. Comm. on Bus. & Indus., Bill Analysis, Tex. H.B. 1156, 78th Leg., R.S. (2003). The

legislative history suggests the most lackadaisical reading of the statute. The first sentence says

the law “enables,” as if owners had no prior right to contract. The second sentence says “must.”

But then the second-to-last sentence makes the agreement enforceable notwithstanding lack of

compliance with the second sentence. The bill analysis is simply repeating the language and

makes no attempt to sort out the apparent contradictions.

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case of breach. Freedom of contract, a basic Texas public policy,

strongly

suggests this result.

In a carefully crafted but very brief essay, Professors Miller and

Ragazzo review the case law and statute and then conclude:

As a consequence of the foregoing cases, it can be said that,

although some doubt continues to exist regarding the

validity of voting agreements that fail to meet the

requirements of § 6.252, such agreements will probably be

enforced to the extent they do no violence to the policies of

the statute.

My review of the cases persuades me that this conclusion is and should

be correct. This conclusion is, I hope, understated. The Texas case law that

is coherent all suggests that vote pooling agreements are contracts that

should be enforced between the parties. Moreover, the case law and the

statute as currently written more or less dictate that the remedy of specific

enforcement is available to all owner parties of written voting agreements,

without condition.

Miller and Ragazzo’s take-away is that one should “comply

scrupulously with § 6.252 when drafting agreements so that no issue of

enforceability exists.”

While this conclusion is fine advice for lawyers, the

people who make these voting agreements are often not lawyers. Moreover,

they may well be people who cannot afford a lawyer. Yet they have entered

into what looked to them, and should look to us, like a binding contractual

agreement. Such an agreement harms no one else but only seeks to protect

the interests of the parties who entered into it. The parties who enter such an

Texas courts have given up on freedom of contract most reluctantly. See, e.g., Fairfield Ins.

Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 664–65 (Tex. 2008); Lawrence v. CDB

Servs., Inc., 44 S.W.3d 544, 553 (Tex. 2001). In Fairfield Ins. Co., the court explained:

[I]f there is one thing which more than another public policy requires it is that men of

full age and competent understanding shall have the utmost liberty of contracting, and

that their contracts when entered into freely and voluntarily shall be held sacred and

shall be enforced by Courts of justice. Therefore, you have this paramount public policy

to consider—that you are not lightly to interfere with this freedom of contract.

Fairfield Ins. Co., 246 S.W.3d at 664–665 (alteration in original) (citing Wood Motor Co., Inc. v.

Nebel, 238 S.W.2d 181, 185 (Tex. 1951) (quoting Printing and Num’l Registering Co. v.

Sampson, L.R. 19 Eq. 462, 465 (1875))).

13 MILLER & RAGAZZO, supra note 15, § 30:3.

Id.

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agreement act reasonably—they are only agreeing to do what they already

have a right to do. If the statute declares that this quite reasonable action

was legally ineffective, then the statute punishes their reasonableness. Next

time around, they will not hire a lawyer (the one they cannot afford)—they

will just not work out their problems amicably. Perhaps they will decline to

enter into certain transactions or businesses at all, and we will all be the

poorer for it. The law should encourage reasonable behavior and the

working out of business disputes by contract, the law should encourage

business, and the law should uphold the value of the voting right, one stick

in the bundle of property that shareholders have purchased. So it matters

that Miller and Ragazzo are right.

D. Road Map and Thesis

In this Article, I examine the cases (Part II) and statute (the older

versions in Part II, and the latest versions in Part III) in detail. I conclude

that one of the Texas precedents is wrong and should be overruled. The one

Fifth Circuit case to look at the issue is reasoned incorrectly. A core of

Texas cases conflict with these two but reach a defensible, coherent

position; they support Miller and Ragazzo’s conclusion.

These best-reasoned cases and the most careful and literal reading of the

current statute show that the statute leaves enforceability to the law of

contracts and merely confers a remedy. No submission to the corporation is

required. A notation on the share certificates referring to the agreement may

confer an advantage in certain situations but makes no difference between

the parties. In short, freedom of contract prevails. I urge that courts

reviewing this issue in the future follow the better cases and this careful and

literal reading of the statute. The statute requires this result, but it is

inartfully drafted and easily misreadable. Amending the statute to

encourage this result would also assist. I conclude (Part IV) with a few

ways to amend the code to alleviate the problem.

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346 BAYLOR LAW REVIEW [Vol. 68:2

II. THE CASES (AND THE STATUTE): WHAT WORKS AND WHAT DOES

NOT

A. The Earliest Baseline: Withers v. Edwards (1901)

—Works

Withers alleged that he and his co-shareholder Edwards feared the

corporation (a bank) was in trouble.

They agreed to go about individually

buying up more shares from scattered shareholders and then vote all their

shares together to elect better directors and retain their own offices.

reliance on the agreement, Withers went about buying up shares.

By the

time he finished and returned, Edwards had combined with others to take

over control of the bank, shutting Withers out.

Having relied on

Edwards’s promises, Withers sued for reliance damages.

The court

stipulated that shareholder voting agreements were generally enforceable:

“It is legal for a majority of the shareholders to combine and control the

election of the board of directors and management of the corporation.”

This particular agreement went too far, however: “But a contract in regard

to elections in private corporations is not legal if it provides that a lucrative

corporate position shall be given to one or more of the parties . . . .”

“[P]resident and teller” sounded lucrative to the court.

Absent that, the

opinion suggests such agreements would be enforceable. The case says

nothing about the agreement being in writing.

Courts in Texas have uniformly agreed with Withers that a shareholder

voting agreement the object of which is to appoint an officer—a paid

position—is contrary to public policy and unenforceable.

Furthermore, the

offending provision is not generally severable from the rest of the

Withers v. Edwards, 62 S.W. 795 (Tex. Civ. App.—Dallas 1901, no writ).

Id. at 795–96.

Id.

Id. at 796.

Id.

Id. (citations omitted).

Id.

Id. at 795–96.

Atlas Petroleum Corp. v. Galveston, H. & S.A. Ry. Co., 5 S.W.2d 215, 220 (Tex. Civ.

App.—El Paso 1928, writ ref’d); Funkhouser v. Capps, 174 S.W. 897, 898–99 (Tex. Civ. App.—

Fort Worth 1915, writ ref’d); Withers v. Edwards, 62 S.W. 795, 796 (Tex. Civ. App.—Dallas

1901, no writ).

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agreement; it rather takes the whole agreement down with it.

But the

baseline default legal position about vote pooling agreements expressed in

Withers stood unopposed for forty-four years until Roberts was decided.

B. Departing from the Strait and Narrow: Roberts v. Whitson

(1945)

—Does Not Work

Whitson and Roberts, two shareholders of the J.W. Crowdus Realty

Company, agreed for a period of twenty-five years “to vote collectively all

shares of the capital stock of the J.W. Crowdus Realty Company now

owned or hereafter acquired by us.”

Fourteen years later, Whitson and

Roberts amended the agreement to provide that, if the two disagreed on

how to vote the shares, arbitrators selected according to an agreed

procedure would decide how the shares would be voted.

By this time,

Whitson and Roberts were, together, a majority block.

The agreement

purported to bind the parties’ heirs and representatives, and the amendment

purported to give the parties the right to designate some person “to

represent his or her stock” after death until the agreement term expired.

The agreement also purported to bind transferees.

When the parties later disagreed as to how the shares should be voted,

Whitson demanded arbitration, and Roberts then claimed the agreement was

illegal.

Both the corporation and certain minority shareholders joined the

Funkhouser, 174 S.W. at 899. But see Burnett v. Word, Inc., 412 S.W.2d 792, 795 (Tex.

Civ. App.—Waco 1967, writ dism’d by agr.), discussed infra Part II.D.

188 S.W.2d 875 (Tex. Civ. App.—Dallas 1945, writ ref’d w.o.m.).

Id. at 876. In this recitation, “Roberts” includes both T.P. Roberts and Allene Roberts, who

were married at the date of the first agreement. When they were divorced, Allene Roberts came to

own some of the shares formerly owned solely by T.P. Id. Allene joined in the amendment that

occurred in the 15th year of the agreement. Id.

Id.

See id.

Id.

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348 BAYLOR LAW REVIEW [Vol. 68:2

suit, and all of these also argued the agreement was illegal.

Though the

trial court upheld the agreement, the court of appeals struck it down.

The court of appeals seemed unable to grasp basic corporate law

distinctions. There are two grounds for its decision.

The first is that the

agreement was, in effect, a proxy and therefore revocable (the court cited

failed voting trust cases as precedent).

The second was that the agreement

required the shareholder to violate a duty.

Neither argument is correct.

First, the proxy argument. The court began with homage to the rights of

shareholders to agree without fraud to do anything they could have done

without the agreement: “It is generally held that agreements or

combinations by stockholders to vote their stock so as to control corporate

action, are permissible if, without fraud, they seek to accomplish only what

they might have accomplished without the agreement.”

This sounds like a

contract is possible, and is reminiscent of the Withers dicta,

but, in the

very next sentence, the court claimed that “proxies and voting agreements”

are revocable unless “coupled with an interest or based upon consideration

deemed valuable in law.”

The conflation of a voting agreement with a proxy was wrong. A proxy

is an agent appointed to vote stock on behalf of its owner.

Agency

Id. at 877. Quite transparently, Roberts had decided to form a new majority or at least bet

that, with Roberts’s having abandoned Whitson, Whitson would not be able to control. The

corporation and the minority shares who joined the suit obviously agreed with Roberts on the

business’s new direction.

Id. at 878.

The court also noted that “the agreement, even if considered permissible, was not based

upon any consideration deemed valuable in law.” Id. at 877. This is simply wrong or it rests on the

court’s other arguments. Obviously, the mutual promises to vote as per the agreement provided

consideration.

Id. at 878.

Id.

Id. at 877–78.

See supra text accompanying note 47.

Roberts, 188 S.W.2d at 878.

This has always been true, and courts long before Roberts recognized it. See, e.g., Atlas

Petroleum Corp. v. Galveston, H. & S.A. Ry. Co., 5 S.W.2d 215, 220 (Tex. Civ. App.—El Paso

1928, writ ref’d); Cattle Raisers’ Loan Co. v. Sutton, 271 S.W. 233, 239 (Tex. Civ. App.—San

Antonio 1925, no writ); Mann v. Mitchell, 243 S.W. 734, 740 (Tex. Civ. App.—San Antonio

1922, writ granted), rev’d on other grounds, 255 S.W. 980 (Tex. 1923). Courts after Whitson also

recognized it. See, e.g., Zollar v. Smith, 710 S.W.2d 155, 157 (Tex. App.—Eastland 1986, no pet.)

(“The proxy agreement is viewed as creating the relationship of principal and agent and is for the

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authority is at will

because it is the power to bind the principal; unless the

principal has power to terminate at will the agent’s authority, the agent

could create infinite liability for the principal. A principal can therefore

revoke an agent’s authority even though the revocation breaches a

contract.

There are two exceptions: when the agency is “coupled with an

interest,” meaning that the agent herself holds a property right that makes

the agency authority valuable to her; and when consideration passes from

the agent to the principal in exchange for the agency power.

In those

cases, the agent has an independent reason to hold the authority; the agent

is, in other words, not acting solely for the principal, and the principal

knows this. So that kind of agency can be other than at will.

Neither vote pooling agreements generally nor Roberts and Whitson’s

voting agreement involved any proxies, however; no agent was given power

to vote any shares.

The court tried to shoehorn the agreement into an

agency category:

[S]everal contingencies are provided where the ownership

and power to vote stock are separated. This is true where

the parties disagree as to how their stock should be

voted[;] . . . the agreement provides for appointment of a

board of arbitration constituted of strangers who were to

most part governed by principles of agency law.”) (quoting L. Proctor Thomas, Comment,

Irrevocable Proxies, 43 TEX. L. REV. 733, 735 (1965)).

See, e.g., Cates v. Cincinnati Life Ins. Co., 947 S.W.2d 608, 613 n.19 (Tex. App.—

Texarkana 1997, no writ); Sunshine v. Manos, 496 S.W.2d 195, 198–99 (Tex. Civ. App.—Tyler

1973, writ ref’d n.r.e.); Chain v. Pye, 429 S.W.2d 630, 634 (Tex. Civ. App.—Beaumont 1968,

writ ref’d n.r.e.); McDonald v. Davis, 389 S.W.2d 494, 497 (Tex. Civ. App.—Houston 1965, no

writ).

This principle is expressed in the cases as a distinction between a power to revoke and a

right to revoke:

The principal may of course revoke an agent’s authority where not coupled with an

interest, but there is a distinction between his power to revoke and his right to revoke.

He at any time before full performance can revoke the authority of an agent so the agent

will lose his authority to bring the principal into legal relations with a third party.

However, if he has no right to revoke it, he will be liable for damages suffered by the

agent by reason of the wrongful revocation.

McDonald, 389 S.W.2d at 497. The principle is also cited in Sunshine, 496 S.W.2d at 198–99.

See Zollar, 710 S.W.2d at 156–59.

See Roberts, 188 S.W.2d at 877.

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350 BAYLOR LAW REVIEW [Vol. 68:2

decide the issue or difference, and, according to their

decision, the stock was to be voted.

This second sentence, while true in itself, says nothing at all about a

proxy. Perhaps the court put the statement in passive voice to obscure the

facts. Under the terms of the agreement reported by the court in the opinion

itself, after arbitration “the three stockholders were to vote their stock

accordingly.”

At no time was any arbitrator authorized to vote the stock.

The shareholders were to do it themselves.

There was no proxy and no

separation of the ownership and power to vote stock.

The court’s next statement is even further afield. Apologies for the

length of this sentence. I did not write it.

The agreement also provides that either party had the right,

by will or otherwise, to designate someone with authority

to represent the stock after death of the owner, and this

without regard to its ownership; and, in absence of such a

provision, the person succeeding to the ownership of at

least 50 percent of the stock on death of the former owner,

was authorized to appoint someone to vote the stock; and,

Id. at 878 (emphasis added).

Id. at 876. The recitation of the contract terms re-affirms this statement. Under the

contract’s terms, only shareholders vote stock:

[B]elieving it to be to our interest at all times and in all meetings of stockholder to vote

our stock collectively, do hereby bind ourselves, heirs and representatives . . . to vote

collectively. [A]greeing that in all matters to be voted upon by the stockholders . . . the

three contracting parties would endeavor to reach an accord in advance . . . as to voting

their stock.”

Id.

J. Cary Barton has written misleadingly that a “statute provides that proxies coupled with

an interest include the following: . . . parties to a voting agreement created under Tex. Bus. Org[s].

Code Ann. § 6.252 or shareholder agreement under Tex. Bus. Org[s]. Code Ann. § 21.101.” J.

CARY BARTON, TEXAS PRACTICE GUIDE: BUSINESS ENTITIES § 7:57 (2015). For this, he cites

Texas Business Organizations Code Section 21.369(a). Id. What Section 21.369 actually provides

is that “a ‘proxy coupled with an interest’ includes the appointment as proxy of: . . . a party to a

voting agreement under Section 6.252 or a shareholders’ agreement created under Section

21.101.” TEX. BUS. ORGS. CODE ANN. § 21.269 (West 2012) (emphasis added). First the party to

the voting agreement must be appointed as proxy. Without this, no proxy exists, and revocability

cannot be at issue. Nothing in Section 21.369 remotely suggests that every voting agreement

includes a proxy. Of course, a vote pooling agreement can be written to include proxy voting, but

it did not in Roberts nor in any of the other cases discussed in this Article.

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in case either stockholder disposed of his or her stock, the

person acquiring a majority should succeed to the rights

and powers of the former owner under the voting

agreement; thus clearly disfranchising those acquiring the

minority of the stock.

It’s a long sentence. The sentence has an either/or/or structure. Either

the agreement runs afoul of the proxy rule because it allows the parties to

designate someone to perform the agreement after the parties’ death; or, in

the absence of such a provision allows a person succeeding to at least half

of a party’s stock to “appoint someone to vote the stock,” the claim goes; or

if a party transfers stock, the person ending up with the majority of it would

“succeed to the rights and powers of the former owner” under the

agreement. The claim of this complicated sentence, following immediately

on the argument addressed in the last paragraph, appears to be that each of

these alternative provisions allows separation of ownership and power to

vote, i.e., mandates a proxy.

But the provisions of the agreement did no such thing. The agreement

required that the shareholders vote in accordance with the agreement.

With regard to the first either, the agreement allowed a party to designate

someone to “represent the stock,” not vote it.

Representing the stock is, as

a legal phrase, admittedly, less than a model of clarity,

but it most likely

meant taking part in the conference regarding how the stock should be

voted and perhaps argue before the arbitrator. The agreement contained no

mention of proxies at all, and in all cases provided that the owners were to

vote the stock.

In an agreement lacking any reference or requirement

whatsoever to the appointment of any proxy, the phrase “represent the

stock” can hardly be taken to imply one.

The alternative or clauses in the next two parts of the sentence clearly

did not require any proxies, either. The court’s pegging a proxy requirement

on this one phrase is at best a long stretch. Under the agreement, the owner

was to vote the stock.

Roberts, 188 S.W.2d at 878.

Id. at 876.

Id. at 876, 878 (emphasis added).

The phrase in the agreement is, according to the statement of facts in the opinion itself, “to

designate some person . . . to represent his or her stock after death and during the remainder of the

period covered by the voting agreement.” Id.

Id.

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With regard to the first or: in the absence of a designation, the court

says that the person succeeding to more than fifty percent of a party’s stock

“was authorized to appoint someone to vote the stock.”

But that is not

what the stipulated facts report. The facts are that the successor to fifty

percent “would be authorized to designate some person as successor in the

voting agreement.”

Because the voting agreement left voting to the

owners, this provision did not separate ownership and voting. That the court

could report the facts on one page of its opinion and state something

contrary in its legal analysis is remarkable.

With regard to the second or, the court reports the facts accurately: the

person acquiring a majority would “succeed to the rights and powers of the

former owner under the voting agreement.”

But the court assumes without

support that the voting agreement gave anyone a power to vote. The voting

agreement did not give anyone a right to vote. The parties had the right to

vote by virtue of their ownership, not under the agreement. The agreement

affirmed the parties’ right to vote their own shares and did not attempt to

deprive them of it. All the agreement gives a party is the right to agree with

other shareholders (something all shareholders have a right to do) or upon

disagreement call for arbitration, after which “the . . . stockholders were to

vote their stock accordingly.”

The right to vote remains in the

shareholders in all cases under this agreement. The obligation to vote in a

certain way is all the agreement requires.

The falsity of the court’s analysis is emphasized by the modest relief the

plaintiff sought. Whitson asked the court for an injunction that Roberts “be

compelled to comply with the . . . voting agreement and prohibited from

voting the stock . . . except in compliance with the terms and provisions of

the agreement.”

Had the agreement given anyone else the power to vote

Roberts’s stock, surely Whitson would have asked that it be ordered voted

in accordance with that power. But the agreement provided no such thing,

so Whitson merely asked that Roberts be prohibited from voting and that

the corporation not recognize Roberts’s vote if he did not comply. (The

Id. at 878.

Id. at 876.

Id. at 878.

Id. at 876.

Id. at 877.

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Delaware Supreme Court granted the same remedy in a voting agreement

case two years later.

The court in the end claimed, as if the agreement authorized a proxy,

that the voting agreement was revocable and had been revoked by

Roberts.

Because it was not a proxy, this conclusion did not follow.

The second ground for the court’s analysis was that shareholders owe

some duty that the agreement required them to violate:

Stockholders have a duty to perform, that is, to use their

voting power for the best interests of the corporation, and

cannot agree or combine in such a way as to place their

voting power in others, thereby disqualifying themselves to

perform this duty; but at all times must be free to cast their

vote for what they deem the best interests of the

corporation.

This seems like a much broader ground. In fact, this statement is so

broad that it is frightening. As an aside, some of it is clearly incorrect as

applied to this agreement. Note how the court restates the rule: “and cannot

agree or combine in such as to place their voting power in others.”

One

must remember that the court tried to apply this statement to an agreement

that did not in fact place any shareholder’s voting power in anyone else.

Under the agreement, each shareholder was to vote the shareholder’s own

shares.

But even if we separate out from the statement the part that does not

apply to this case—the separation of ownership and voting power—still the

statement seems to condemn these facts. The last part is the kicker, that

shareholders “must be free to cast their vote for what they deem the best

interests of the corporation.”

That statement appears to condemn any

limitation at all on shareholder voting whim, even a limitation self-imposed

by the shareholder’s own agreement.

But that part of the statement, if meant as a rule of law, is contradicted

by the court itself. If this statement were the law, then the court’s earlier

Ringling Bros.-Barnum & Bailey Combined Shows v. Ringling, 53 A.2d 441, 448 (Del.

1947).

Roberts, 188 S.W.2d at 878.

Id.

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statement—”that agreements or combinations by stockholders to vote their

stock so as to control corporate actions, are permissible if, without fraud,

they seek to accomplish only what they might have accomplished without

the agreement”

—cannot possibly be the law. One either has the ability to

form a binding agreement to vote stock or not. If shareholders “must be free

to cast their vote for what they deem the best interests,”

then there is no

such thing as an enforceable agreement or combination by shareholders to

vote their stock so as to control corporate actions. If a dispute arises

between the two shareholders, as in Whitson itself, then the court must

apply one or the other statement; it cannot apply both to the facts. The

court’s statement is wrong by virtue of contradiction.

The court’s statement is surely incorrect, also, as a description of

anyone’s understanding today. Shareholders as shareholders do not have a

legal duty to use their voting power for the best interests of the corporation.

Shareholders have no legal duty to vote at all, and no one even checks to

see if they are voting in their view of the corporation’s best interests. I

submit that, if shareholders have rights to form binding contracts, as they

assuredly do, and if they own the shares, and if the shares include a right to

vote and shareholders own that right, then shareholders have a right to make

a binding agreement to vote together. That was the general understanding

nationally when Roberts was decided.

Either they can do what they will

with their own property, or they cannot. In the Delaware case decided two

years later, Ringling, the court said:

Generally speaking, a shareholder may exercise wide

liberality of judgment in the matter of voting, and it is not

objectionable that his motives may be for personal profit, or

determined by whims or caprice, so long as he violates no

duty owed his fellow shareholders . . . . The ownership of

voting stock imposes no legal duty to vote at all. A group

of shareholders may, without impropriety, vote their

Id. at 877–78.

Id. at 878.

See, e.g., Henry W. Ballantine, Voting Trusts, Their Abuses and Regulation, 21 TEX. L.

REV. 139, 142–43 (1942) (“It is generally held that shareholders may agree to vote their shares as

a unit for the election of directors and thus gain control of the management, when they are not

seeking some favor or advantage for themselves contrary to the best interests of the corporation.

Such agreements to vote for specified persons, or as a majority of the shares in the pool may

direct, are valid and binding if they do not contemplate limiting the discretion of the directors or

any fraud, oppression or wrong against other shareholders.”).

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respective shares so as to obtain advantages of concerted

action. They may lawfully contract with each other to vote

in the future in such way as they, or a majority of their

group, from time to time determine.

This view of shareholder voting is applied to vote pooling agreements in

hornbook law today

and is confirmed in the Model Business Corporation

Act,

but this reasoning has always been sound. If shareholders have

freedom to vote or not as they wish, then they have freedom to agree to vote

or not as they wish; no one could be harmed prejudicially by this.

Had Whitson won, was a remedy available? Damages would surely be

speculative. A positive injunction requiring a vote in accordance with the

agreement would be possible, though this is what the statute was written to

provide. The contract remedy Whitson asked for, and which Delaware

granted in Ringling,

was almost as modest as enforcement allows: that the

breaching party’s votes not be counted. An even more modest remedy

would be a negative injunction against the owner’s voting the shares. Such

a remedy affects no one’s rights but the breaching shareholder’s, and

nothing forbids it. So Whitson would have had a remedy.

Ringling Bros.-Barnum & Bailey Combined Shows v. Ringling, 53 A.2d 441, 447 (Del.

1947).

See, e.g., JAMES D. COX & THOMAS L. HAZEN, THE LAW OF CORPORATIONS § 14.7 (3d ed.

2015) (“Agreements to vote for specified persons as directors or to vote as the holders of a

majority of the shares in a pool may direct are valid and binding if they do not contemplate

limiting the discretion of the directors or committing any fraud, oppression, or wrong against other

shareholders.”); R.D. Hursh, Annotation, Validity and effect of agreement controlling the vote of

corporate stock, 45 A.L.R. 2d 799 § 3 (1956) (“The courts, in what would appear to be a clear

majority of jurisdictions, have taken the view that a contract entered into by an owner of corporate

stock, under the terms of which the shareholder agrees to vote his stock in a particular manner, is

not, by its nature, invalid, but on the contrary, it is only when additional circumstances indicate

that the contract was inspired by fraud that public policy requires that it be given no effect.”).

See MODEL BUS. CORP. ACT § 7.31 (AM. BAR ASS’N 2013). The only requirement of the

MBCA besides a contract is that it be memorialized in a signed writing. The entire provision on

voting agreements reads as follows:

(a) Two or more shareholders may provide for the manner in which they will vote their

shares by signing an agreement for that purpose. A voting agreement created under this

section is not subject to the provisions of section 7.30 [on voting trusts].

(b) A voting agreement created under this section is specifically enforceable.

Id.

Ringling Bros., 53 A.2d at 448.

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Nor is Roberts a voting trust case. In a voting trust, the legal ownership

of the shares for purposes of voting is turned over to a trustee, who takes

possession of the shares.

The Roberts parties did no such thing. Even if

they had, another case prior to Roberts had approved voting trusts in

general, albeit in dicta, condemning only voting trusts that attempted to

usurp the management authority of the board of directors.

But Whitson

and Roberts merely entered a voting agreement.

Discomfort with the Roberts case was expressed by contemporaries,

including some who suggested that the case was wrong.

100

The Roberts

case was appealed to the Texas Supreme Court. The writ was nominally

refused “for want of merit,”

101

but a commentator reported in 1952 that

respondents on the writ had moved to dismiss on the ground that Whitson

had since sold all of his stock, thus rendering the case moot.

102

That is

commentary, however. The law could be clarified substantially, and made

better in almost every way, by a decision overruling Roberts.

See, e.g., TEX. BUS. ORGS. CODE § 6.251 (West 2012).

Hamblen v. Horwitz-Texan Theatres Co., 162 S.W.2d 455, 457 (Tex. Civ. App.—

Galveston 1942, no writ); see Grogan v. Grogan, 315 S.W.2d 34, 38–39 (Tex. Civ. App.— 1958,

writ ref’d n.r.e.) (recounting the conflict in the case law).

100

See, e.g., 2 IRA P. HILDEBRAND, THE LAW OF TEXAS CORPORATIONS § 556 (1942 &

Supp. 1950) (“The reasoning of the court and the limits of the doctrine laid down are not entirely

clear.”); Edward O. Belsheim, The Need for Revising the Texas Corporation Statutes, 27 TEX. L.

REV. 659, 689–90 (1947) (recognizing the conflict created by Roberts and suggesting a statutory

authorization of voting trusts is in order); Sylvan Lang, The Proposed Texas Business Corporation

Act—Two Important Developments, 30 TEX. L. REV. 849, 858–59 (1952) (“Viewing all of the

Texas decisions and the decisions of the courts of other states, it is my opinion that, in spite of the

Whitson case, if a voting trust agreement were properly prepared for bona fide purposes—

legitimate business reasons—and these purposes were expressed in agreement, our supreme court

would sustain its validity. Therefore, I must respectfully disagree with the expressions of the court

in this most recent case.”); Leon Lebowitz, Book Review, 38 TEX. L. REV. 659, 667 (1960)

(reviewing RALPH J. BAKER & WILLIAM L. CARY, CASES AND MATERIALS ON CORPORATIONS

(1959)) (“[T]he unfortunate Roberts v. Whitson . . . .”); see also Note, Statutory Assistance for

Closely Held Corporations, 71 HARV. L. REV. 1498, 1503 (1958) (continually noting Roberts as

the unusual precedent other jurisdictions have not followed); Ben Lamar Reynolds, Note,

Corporations—Trusts—Agency—Transfer of Voting Control Converted Intended Voting

Agreement into a Voting Trust—Abercrombie v. Davies, 130 A.2d 338 (Del. 1957), 36 TEX. L.

REV. 508, 510–11 (1958).

101

Roberts v. Whitson, 188 S.W.2d 875 (Tex. Civ. App.—Dallas 1945, writ ref’d w.o.m.).

102

Lang, supra note 100, at 858.

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C. The Statute: Round One —May Work

The current statute addressing voting agreements was the product

primarily of two drafting efforts, one presented to the legislature in 1961

and one in 1989. The original Texas Business Corporations Act was passed

in 1955,

103

but the initial act lacked a provision regarding voting

agreements.

104

It appears that Roberts (1945) did not present enough of a

problem to mandate an immediate legislative solution. Language addressing

voting agreements was added only sixteen years later. Here is that language:

Any number of shareholders may enter into a voting

agreement in writing for the purpose of voting their shares

as a unit, in the manner prescribed in the agreement, on any

matter submitted to a vote at a meeting of the shareholders

for a period not exceeding ten (10) years from the date of

the execution of the agreement. A counterpart of the

agreement shall be deposited with the corporation at its

principal office and shall be subject to the same right of

examination by a shareholder of the corporation, in person

or by agent or attorney, as are the books and records of the

corporation. Each certificate representing shares held by the

parties to the agreement shall contain a statement that the

shares represented by the certificate are subject to the

provisions of a voting agreement, a counterpart of which

has been deposited with the corporation at its principal

office. Upon such deposit of the counterpart of the

agreement and endorsement of the prescribed statement

upon the certificates representing shares, the agreement

shall be specifically enforceable in accordance with the

principles of equity.

105

The statute may well have been original with Texas. At the time, the

Model Act lacked a provision on voting agreements; it adopted one only in

1969.

106

Though the language of the Texas provision leaves some doubt as

103

Act of Mar. 30, 1954, 53d Leg., 1st C.S., ch. 64, 1954 Tex. Gen. Laws 239 (expired Jan. 1,

2010).

104

See, e.g., id. at 256 art. 2.30 (addressing voting trusts).

105

Act of May 11, 1961, 57th Leg., R.S., ch. 206, § 2, 1961 Tex. Gen. Laws 423, 423–24

(expired Jan. 1, 2010).

106

MODEL BUS. CORP. ACT § 7.31 hist. n.2 (AM. BAR ASS’N 2011).

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to its purposes, the Model Act’s purpose was “to resolve any doubts in

favor of the enforceability of a voting agreement . . . by a specific statutory

provision making it enforceable in accordance with its terms.”

107

The language of the 1961 Texas amendment presents three suggestive

passages. First, the “permissive” language of the statute was a feature from

the beginning: “shareholders may enter.” Second, the language about

depositing the agreement with the corporation and recording it on the share

certificates appears at this early time. Third, the last sentence of the

provision appears to mandate specific enforcement in equity if the

agreement is deposited and endorsed as stated. But no other remedy is

stated for failing to deposit the agreement or endorse the shares; there is no

disincentive for doing that. If one fails to do that, the conditional conclusion

at the end of the statute—that the agreement shall be specifically

enforced—is not required.

What to make of this statute? The language is hardly mandatory.

Nowhere does it say that only agreements conforming to the provision are

enforceable. And of course these kinds of agreements do not have to occur,

so the provision addresses actions no one is forced to take. Moreover, there

is a legal history in the common law, if somewhat checkered in Texas

(given Roberts) of enforcing such agreements, so it is entirely possible that

the common law would grant what the statute guarantees, minus only the

promised remedy of specific enforcement. On the other hand, the statute

cannot be codifying the common law, because the common law lacked any

provision for depositing the agreement with the corporation, making it

examinable, or endorsing it on the back of certificates. The common law,

moreover, lacked a ten-year limitation on the enforceability of such

agreements; the common law might enforce a contract as written no matter

the term.

Notice also that the statute says nothing about prejudice to other

shareholders. Granted, it does declare agreements “specifically enforceable

in accordance with the principles of equity.” Equity has always taken

account of the interests of the public when ordering specific performance.

108

107

Id.

108

See, e.g., Lone Star Salt Co. v. Tex. Short Line Ry. Co., 90 S.W. 863, 868 (Tex. 1906);

Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 488 (Tex. App.—Houston [1st Dist.] 2006, no pet.)

(“Absent a significant public interest, parties to a private contract are left to their remedies at

law.”); Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398, 401 (Tex. App.—Dallas

1989, no writ); Chevron U.S.A. Inc. v. Stoker, 666 S.W.2d 379, 382 (Tex. App.—Eastland 1984,

writ dism’d w.o.j.).

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Including that in “principles of equity” is a smart way to read the statute.

But the interests of other shareholders, and of the corporation and the

potential for shareholders to overstep their bounds by usurping board power

(a legal, not equitable, concern), seem remarkably removed from this

statute’s terms. Clearly this statute does not cover all of the potential

grounds for condemning a shareholders’ agreement. How shall we take it?

It is possible to read the statute as merely offering a remedy. It is true, as

per dicta in Withers and Roberts, that voting agreements should be legally

possible.

109

However, Roberts (and cases Roberts cited) cast some doubt on

how voting agreements should be handled.

110

By offering a remedy, the

statute at least holds clearly by implication that, when made and handled

pursuant to the terms of the statute, such agreements will be enforceable—

they will be specifically enforced. By implication, the statute becomes a

kind of safe harbor. But the statute does not require that all shareholder

voting agreements be handled this way; it merely allows it and then

specifies one result of conformity. This reading accounts for the permissive

word “may”—this is one way to do a voting agreement, but other ways are

left open. It also accounts for the non-committal way that deposition,

examination, and endorsement are named: as duties but more explicitly as

sufficient conditions for a remedy of specific enforcement. It accounts for

the fact that these sufficient conditions are nowhere named as necessary

conditions: the statute does not say that without deposition and endorsement

specific enforcement is not allowed, only that it will occur if deposition and

endorsement precede it! Finally, this view explains the absence of any

requirement of a finding that no other shareholder is prejudiced; putting the

agreement in writing and then giving notice to other shareholders by

depositing the agreement with the corporation alleviates that concern.

There is quite solid precedent for reading the statute as merely adding a

remedy when it applies. The statutes of California, Delaware, Kansas,

Oklahoma, and Rhode Island explicitly preserve the validity of agreements

under the common law.

111

In Minnesota, Reporter’s Notes specifically state

that the common law of contracts still applies to voting agreements, the

109

Roberts v. Whitson, 188 S.W.2d 875, 877–78 (Tex. Civ. App.—Dallas 1945, writ denied

w.o.m.).

110

See id. at 878.

111

CAL. CORP. CODE § 706(d) (West 2015); DEL. CODE ANN. tit. 8 § 218(d) (2015); KAN

STAT. ANN. § 17-6508(d) (2015); OKLA. STAT. tit. 18, § 1063(d) (2015); R.I. GEN. LAWS § 7-1.2-

709(c) (2015). Guam also has such a provision. 18 GUAM CODE ANN. § 28718(c) (2015).

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statute merely providing an extra remedy.

112

Consider this language from

California:

This section shall not invalidate any voting or other

agreement among shareholders or any irrevocable proxy

complying with subdivision (e) of Section 705, which

agreement or proxy is not otherwise illegal.

113

The drafter of the California provision later stated that the statute was

not meant to be the exclusive means of forming voting agreements.

114

The

statute was meant only to enable. And consider Rhode Island’s provision:

The provisions of this section are construed as permissive

and should not be interpreted to invalidate any voting or

other agreement among shareholders, or any irrevocable

proxy which is otherwise not illegal.

115

Yet the operative language of these codes is similar to Texas’s

provision—permissive in the same sense. A statute that validates

agreements formed pursuant to its provisions but does not invalidate others

112

Here is the Minnesota Reporter’s language:

The agreement may be enforced in any way set forth in the agreement, but in the

absence of such a provision, the only method of enforcement would be action in court

for damages or equitable relief under section 302A.469 or general contract principles.

Thus, the person drafting or agreeing to the voting agreement should be aware of the

possible methods of enforcement, such as specific performance, injunctions against the

voting of shares in violation of the agreement or against actions authorized because of

violations of the agreement, suit for damages, or arbitration.

Sections 302A.449 and 302A.453 do not restrict such a voting agreement. Section

302A.453 does not apply at all, in recognition of the difference between the voting

agreement and a trust, and section 302A.449 may be modified (or ignored) as specific

provisions of the voting agreement may direct. This follows from and emphasizes the

contractual nature of the voting agreement.

MINN. STAT. § 302A.455, Reporter’s Notes, Gen. Cmt. (1981).

113

CAL. CORP. CODE § 706(d) (West 2015).

114

Section (d)’s intention that “compliance with section 706(a) is not the exclusive method of

creating a legal voting pool” was noted in William K.S. Wang, Pooling Agreements Under the

New California General Corporation Law, 23 UCLA L. REV. 1171, 1175 (1976). Wang

communicated with Harold Marsh, Jr., “principal draftsman” of the provision, who stated that

subsection (d) “preserves any voting agreement which would have been upheld under the prior

law.” Id. at 1175 n.11.

115

7 R.I. GEN. LAWS § 7-1.2-709(c) (2015).

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“not otherwise illegal” under other law is a plausible reading of the Texas

code, too.

If the statute was intended to merely add a remedy, then, one could ask,

what would the remedy be without it? Specific enforcement seems to be

mandated by the statute only when certain conditions are satisfied. But

there are other remedies. One is obviously a negative injunction that the

shares not be voted contrary to the agreement. Breaching an order not to

vote would be backed up by a potential contempt citation—easily sufficient

incentive to conform in many cases.

If the statute simply adds a remedy, then that explains why the next two

opinions addressing voting agreements, Burnett

116

and Irwin,

117

both

decided just six years after the statute was passed, need not have mentioned

the statute to rule on the enforceability of a voting agreement. Voting

agreements could be enforceable even without complying with the statute.

That is exactly how Burnett and Irwin handled them. To those cases we

now turn.

D. A Return to the Path: Burnett v. Word, Inc. (1967)

118

—Works

Twenty-two years after Roberts v. Whitson was decided, and post-

statute, the Texas courts seem to have forgotten all about the Roberts

mistake and pointed the law in a completely different direction from

Roberts—back to the Withers dicta. The court in Burnett v. Word, Inc. held

a vote pooling agreement valid and binding as a contract—as a matter of

contract law.

119

The agreement at issue involved all but three of the

shareholders of Word Records, Inc. and Word Records Distributing

Company, but the agreement was consideration in part for allowing those

three to be bought out, so, soon after the agreement was signed, the only

shareholders left were signatories to it.

120

The agreement provided, “Each

binds himself to vote as stockholders and directors in such a manner as to

116

See generally Burnett v. Word, Inc., 412 S.W.2d 792 (Tex. Civ. App.—Waco 1967, writ

dism’d by agr.).

117

See generally Irwin v. Prestressed Structures, Inc., 420 S.W.2d 491 (Tex. Civ. App.—

Amarillo 1967, writ ref’d n.r.e.).

118

Burnett, 412 S.W.2d 792.

119

Id. at 795.

120

Id. at 793–94.

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carry out bona fide the purposes and intent of this contract as herein

expressed.”

121

The purposes were two:

(1) That Burnett and Howell remain as directors, and

(2) That Word Records, Inc. not incur any new financial

obligation in excess of $10,000, and Word Distributing not

incur any new obligation in excess of $40,000, without the

unanimous approval of the directors.

122

The contract was to last ten years.

123

Eight years later, however, McCracken, a shareholder party to the

agreement and manager of the corporations, wanted to borrow $200,000

and expand.

124

The lender, Prudential, required a merger of the two

companies as a condition of the loan.

125

Corporate merger statutes of the

time required an 80% vote of shareholders in favor.

126

Burnett opposed, and

with 27% of the preferred shares, Burnett had power to block the merger.

127

To counter Burnett, the shareholders of Word Records voted to issue 800

shares to Kaiser.

128

The effect was to dilute Burnett’s interest to less than

20%.

129

Kaiser then voted for the merger, as did other shareholders bound

by the agreement, and with Kaiser’s shares the vote topped 80% and the

merger closed.

130

In the meantime, the two corporations, and later the

merged corporation, sued Burnett for a declaratory judgment that the vote

pooling agreement was unenforceable and that the merger was valid.

131

Burnett cross-claimed that the agreement was valid and the merger void.

132

To the extent the agreement stipulated that the board of directors adhere

to certain business positions, the court said it would be void. “An agreement

by which directors abdicate or bargain away in advance the judgment the

121

Id. at 794.

122

Id.

123

Id. The facts occurred before the statute was passed, so the term of the contract was not an

attempt to conform to the statute.

124

Id.

125

Id.

126

Id.

127

Id.

128

Id.

129

Id.

130

Id.

131

Id. at 793.

132

Id.

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law contemplates they shall exercise over the corporation is void.”

133

But

the court held the agreement bound the shareholders as shareholders.

Quoting a summary of the law, the court asserted as follows:

[T]he modern view on the question whether a stockholder’s

contract, by which the manner in which he may vote his

holdings is controlled, is valid, appears to be that such

contracts contain no inherent defect requiring that they be

struck down. Under this view, agreements by which a

stockholder binds himself to vote in a specified manner

with regard to the election of corporate officers and

directors have been upheld, as have other agreements, as,

for example, agreements binding stockholders to vote their

stock in accordance with the will of a majority of the

parties to the agreement.

134

These are just contracts, the court said: “We think the contract valid as

to the obligations the parties bound themselves to as stockholders.”

135

The

court reversed the trial court’s holding that the contract was unenforceable

(so it is possible that the shareholder vote to authorize the sale of shares to

Kaiser in order to facilitate expansion financing was a breach).

136

The court

did not mention the statute once. The court appeared to believe it could

uphold the contract without the statute’s support.

Note that the Burnett facts involved an agreement among all but three

shareholders, and the court upheld the agreement without even discussing

the rights of the three non-participating shareholders.

137

The agreement was

binding notwithstanding it was not unanimous, the holding implies, because

there was no prejudice to the non-participating shareholders, who were

quickly bought out.

133

Id. at 795.

134

Id. (emphasis added) (quoting R.D. Hursh, Annotation, Validity and effect of agreement

controlling the vote of corporate stock, 45 A.L.R 2d 799 § 2 (1956)). I have no idea why the

quoted language appears to sanction shareholder appointment of officers, which would have run

afoul of Withers. See supra notes 48–52 and accompanying text.

135

Burnett, 412 S.W.2d at 795 (emphasis in original).

136

Id. at 795–96. The court appeared to sever the void and not-void provisions of the

agreement. Id.

137

See id. at 792–96. The agreement was formed to induce Burnett to assent to the three’s sale

of their shares to McCracken. Id. at 794.

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There was no mention in Burnett of whether the agreement was

deposited with the corporation, available for inspection by the shareholders,

or noted on the share certificates.

E. Building a Hedge by the Path: Irwin v. Prestressed Structures,

Inc. (1967)

138

—Works

Irwin v. Prestressed Structures, Inc. was also not a straight vote pooling

agreement. In the case, a shareholder promised to vote his shares in a

certain way in consideration of a non-shareholder’s promise to buy those

shares.

139

The court upheld this as a contract, too, however, and this holding

on facts well beyond those of vote pooling strongly suggests a plain vanilla

vote pooling agreement would be binding.

140

In Irwin, shareholder White decided he could no longer work with

shareholder Irwin.

141

Irwin and White each owned 7,500 shares;

Cocanougher, the only other shareholder, owned only 500.

142

The shares

were all subject to a transfer restriction requiring them to be submitted first

to the corporation at book value before sale.

143

When White contracted to

sell to Flygare, he conditioned the sale on the corporation’s declining to

buy, but he also promised “to vote his 7,500 shares to cause the corporation

to decline to exercise the corporation’s option to buy the White stock at

book value.”

144

At a shareholders’ meeting raising the issue, White voted as

promised.

145

A Prestressed Structures board meeting also voted to decline to

buy.

146

White then sold his shares to Flygare at a price below book value.

147

White explained later that he would not have sold if it would have placed

Cocanougher in subjection to Irwin.

148

138

420 S.W.2d 491 (Tex. Civ. App.—Amarillo 1967, writ ref’d n.r.e.).

139

Id. at 493.

140

Id. at 495.

141

See id. at 493.

142

See id.

143

See id.

144

Id.

145

See id.

146

See id.

147

See id.

148

See id.

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Irwin challenged this chain of events as a breach by White of the

transfer restriction.

149

The court responded that the corporation had itself

waived its option to buy the stock.

150

Perhaps anticipating that Irwin would

then argue that White’s voting as a shareholder, or agreeing to vote, for the

corporation’s waiver breached the transfer restriction, the court discussed

the legality of the voting agreement—White’s promise to vote his shares

against Prestressed Structures’s purchase of White’s shares.

151

On that issue, the court quoted and followed the only language from

Roberts that displays a correct view of voting agreement law: “It is

generally held that agreements or combinations by stockholders to vote

their stock so as to control corporate action, are permissible if, without

fraud, they seek to accomplish only what they might have accomplished

without the agreement.”

152

The court applied the rationale

straightforwardly:

Since White with 7,500 shares and Cocanaugher with 500

shares controlled the majority voting stock and could have

accomplished the objective without the prior agreement,

there appears to be no fraud in the agreement nor undue

advantage taken of Irwin.

153

The voting agreement was therefore legal and binding.

154

The court also

noted in finding an absence of fraud against Irwin that (1) Irwin in the end

held the same voting power and economic share in the enterprise as he did

before,

155

and (2) White received less for his shares than the corporation

would have paid, thus saving Irwin any indirect expense in the

transaction.

156

Like the Burnett opinion, the Irwin court did not mention the statute. It

cited only Roberts, quoted extensively from Burnett with regard to the

contractual freedom of shareholders, and discussed a few cases from other

149

See id.

150

See id. at 494.

151

See id.

152

Id. (quoting Roberts v. Whitson, 188 S.W.2d 875, 877–78 (Tex. Civ. App.—Dallas 1945,

writ ref’d w.o.m.)).

153

Id.

154

The ruling took the form of a denial of injunctive relief on the ground that there was no

probable right of recovery. See id. at 495.

155

See id. at 493.

156

See id. at 495.

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jurisdictions.

157

On the common law alone, or perhaps thinking implicitly

that the statute did not curtail contractual freedom, the court appears to have

rejected Roberts v. Whitson.

158

The Irwin case can thus be cited in support

of the proposition that shareholders’ rights to vote may be made the subject

of a binding contract like any other contract.

Note also that, as in Burnett, the voting agreement was not unanimous:

Irwin was not a party. But the court upheld the agreement nonetheless,

Irwin’s rights not suffering impairment.

There was no mention in Irwin of whether the voting agreement was

deposited and available for inspection or whether the agreement was noted

on the share certificates.

F. Another (Broken) Hedge Along the Path: R.H. Sanders Corp. v.

Haves (1976) (Haves)

159

Stanley Haves, Samuel Schwinder, and Ronald H. Sanders entered into

a written contract in which Haves and Schwinder promised to loan the R.H.

Sanders Corporation $26,000 and also buy 35% of the corporation’s stock

for $24,000.

160

The contract provided, “Each of the three stockholders shall

be a Director of the corporation and each vote shall be equal. A majority of

the three-man Board of Directors shall control.”

161

After the agreement was

executed, Haves and Schwinder advanced the funds.

162

Later, Sanders gave

Haves and Schwinder notice of a shareholders’ meeting to address whether

to increase the board from three to five, effectively giving control to

Sanders, who owned 65% of the stock.

163

Haves and Schwinder sued for an

injunction to stop the meeting, an injunction the trial court granted.

164

The court of appeals affirmed.

165

First, the court found that the contract,

if binding, controlled whether the meeting Sanders wanted could occur:

157

See id. at 494–95.

158

See id. at 494.

159

541 S.W.2d 262 (Tex. Civ. App.—Dallas 1976, no writ). I use the second party’s name as

shorthand for the case to avoid confusion with Sanders v. McMullen, 868 F.2d 1465 (5th Cir.

1989), discussed infra Part II.G.

160

See id. at 263.

161

Id. at 264.

162

See id.

163

See id. at 263.

164

See id.

165

Id.

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Looking at the entire contract, it is evident that this

language was intended to protect plaintiffs’ investment and

loan by giving them a majority control of the Board of

Directors. This control is only possible if Sanders is bound

to vote his shares for the election of plaintiffs to the Board

and is bound not to vote them in a manner that would

deprive plaintiffs of a majority. The use of the verb “shall”

supports this reading.

166

The court also steered clear of the mistake made by the court in Roberts:

“Since this is not a voting trust . . . because there is no severance of the

voting right from the stock ownership, it can only be construed to be a

voting agreement . . . .”

167

Having determined that the contract was a voting agreement, the court

then examined the effect on the agreement of the voting agreement

statute.

168

(Finally, a court that looks at the statute!) This agreement did not

comply with the statute.

169

As the defendants noted, the agreement (1) was

not deposited at the corporation’s principal office and (2) was not noted on

the share certificates.

170

The agreement also lacked a duration term.

171

These are defects, the defendants argued, because the statute says that the

voting agreement “shall” be deposited and “shall” be noted on the

certificates.

172

Duration was limited to ten years.

173

The statute appeared,

according to the defendants, to condition specific enforcement on

compliance with the statute.

174

How to respond to these perceived

deficiencies?

166

Id. at 264.

167

See id.

168

See id.

169

See id. at 264–65.

170

See id.

171

See id. at 264.

172

See Act of May 11, 1961, 57th Leg., R.S., ch. 206, § 2, 1961 Tex. Gen. Laws 423, 423–24

(codified at TEX. BUS. CORP. ACT art. 2.30B (expired Jan. 1, 2010)) (“A counterpart of the

agreement shall be deposited . . . and shall be subject to the right of examination . . . . Each

certificate representing shares held by the parties to the agreement shall contain a statement that

the shares represented by the certificate are subject to the provisions of a voting agreement . . . .”).

173

See id.

174

See Haves, 541 S.W.2d at 264; Act of May 11, 1961, 57th Leg., R.S., ch. 206, § 2, 1961

Tex. Gen. Laws 423, 424 (“Upon such deposit . . . and endorsement . . . the agreement shall be

specifically enforceable in accordance with the principles of equity.”).

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The court finessed these. The time requirement, it said, would be

incorporated by reference into the contract, which, while silent as to time,

“shall be deemed to incorporate the statutory period.”

175

With regard to depositing the agreement with the corporation and

endorsing the shares, the court reasoned that the spirit of the code was met:

The purpose of these requirements in the statute is to give

notice to shareholders or stock purchasers who are not

parties to the voting agreement. Since the parties here are

all of the shareholders and had knowledge of the

agreement, and since no outside buyers were involved, no

compelling policy reason exists here for requiring technical

compliance with these notice provisions.

176

Having thus set aside the deposit and endorsement requirements, the

court enforced the agreement.

177

Haves takes two steps in the right direction. First, it recognized the

agreement for what it was: a contract to vote a certain way.

178

The court

correctly distinguished a voting trust,

179

and the nowhere does the court (or

the parties) suggest that an agreement requiring a shareholder to vote a

certain way is a proxy.

Second, the court does not let the agreement’s failure to meet the

statute’s provisions stand in the way of enforcement.

180

To be clear, the

court actually never said explicitly whether the statute’s provisions were

mandatory—required before any enforcement could occur. The court said

only that, for the parties themselves, the deposition and endorsement

requirements of the statute were met.

181

The purpose of these, the court said,

is “to give notice to shareholders or stock purchasers who are not parties to

175

Haves, 541 S.W.2d at 265.

176

Id.

177

See id. at 265–66 (specifically enforcing the agreement, having found no adequate remedy

at law).

178

Id.

179

See id. at 264–65. Not doing so would have been problematic after the statute was passed

because the statute itself said that “[a] voting agreement entered into pursuant to this Section B is

not subject to the provisions of Section A of this Article,” which addressed voting trusts. See Act

of May 15, 1989, 71st Leg., ch. 801, § 15, art. 2.30B, 1989 Tex. Gen. Laws 3610, 3624 (codified

at TEX. BUS. CORP. ACT art. 2.30B (expired Jan. 1, 2010)).

180

See Haves, 541 S.W.2d at 265.

181

See id.

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the voting agreement.”

182

The parties always have notice, so as between the

parties, failure to satisfy those requirements is beside the point. Another

court later called this the application of “equitable principles to notice

requirements.”

183

But the court also took a step that counters these: the court imposed the

statute’s ten-year term on the agreement.

184

This holding for the first time in

Texas jurisprudence suggested that the statute imposes its requirements on

all voting agreements and does not merely add a remedy. If the common

law alone, which had no time limit, could support enforcement of a voting

agreement, then no requirement would exist to impose one on this

agreement. The court’s imposition of the statute’s time limitation on the

agreement thus suggests that there is no enforceable voting agreement

except through the code. Yet if the statute imposes a ten-year requirement

on the parties themselves, how can the court feel free to set aside the

statute’s requirements that the shares be deposited, examinable, and

endorsed? What purpose is served by the time limitation? If it were met

even though the agreement had a longer term, would the court waive this,

too? On the other hand, if the statute is the only ground of enforceability,

why does the court feel it can set aside its formalities so easily?

Haves does not answer these questions well. Its dicta regarding

compliance with the statute is too narrow even to encapsulate earlier case

law.

185

Irwin expressly held a voting agreement binding in part because

Irwin, a shareholder but non-party to the agreement, was not prejudiced by

the voting agreement at issue.

186

The court’s ruling against him did not even

once mention his knowledge of the agreement.

187

In Irwin, the non-

participating shareholder obviously knew about the agreement and then

complained all the way to the court of appeals that he was prejudiced by

it.

188

But his notice of the agreement was neither fruitful nor necessary

because the exercise of the votes pursuant to the agreement did not in fact

182

Id.

183

Hoggett v. Brown, 971 S.W.2d 472, 484 (Tex. App.—Houston [14th Dist.]

1997, pet.

denied).

184

See Haves, 541 S.W.2d at 265.

185

See generally id.

186

See Irwin v. Prestressed Structures, Inc., 420 S.W.2d 491, 495 (Tex. Civ. App.—Amarillo

1967, writ ref’d n.r.e).

187

See id. at 493.

188

See id. at 492.

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370 BAYLOR LAW REVIEW [Vol. 68:2

prejudice Irwin’s interests.

189

If in fact an agreement causes no prejudice to

another shareholder, then, Irwin necessarily held, the agreement can be

upheld as a matter of contract law without reference to the statute.

Lack of prejudice—rather than the presence of notice—would be a

better ground for Haves. It is only a slightly broader ground. In fact, in

Haves, there were only three shareholders, and they were all parties to the

agreement.

190

Of course they knew of it. But they were not prejudiced by it

at all because the shareholders did only what they had a right to do.

Moreover, each was a party to the agreement itself; one can hardly be

prejudiced by an agreement one freely signed! I submit that in Haves it was

far more relevant and important that the parties suffered no prejudice at all

from the agreement than that they were aware of it. Had they been harmed

by the agreement in a way they could never have contemplated or

controlled, I propose that the court would not have enforced it.

Moreover, even if some shareholders are not parties to an agreement, it

would be wrong to hold that the agreement is undone because some

shareholders did not know about it: Irwin quite rightly teaches us that it

should be upheld in the absence of prejudice to them. The statute provides

notice for a reason—to prevent prejudice, so if no prejudice exists,

enforcement of the statutorily non-compliant voting agreement is as just as

much in the spirit of the statute—and in the spirit of contractual freedom—

as when non-participating shareholders know about the agreement. Re-

rationalizing Haves on this ground would harmonize Texas law not only

with Irwin, Burnett, and the dicta in Withers but also with the national rule:

Agreements to vote for specified persons as directors or to

vote as the holders of a majority of the shares in a pool may

direct are valid and binding if they do not contemplate

limiting the discretion of the directors or committing any

fraud, oppression, or wrong against other shareholders.

191

It would also clarify the statute’s purpose: to protect other shareholders

from prejudice—not to do away with contractual freedom shareholders

previously enjoyed.

189

See id. at 494–95.

190

See 541 S.W.2d at 264.

191

Supra note 95.

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G. A Bridge to Nowhere: Sanders v. McMullen (April 5, 1989)

192

—

Does Not Work

McMullen,

193

a case decided in the U.S. Fifth Circuit, took the statute a

whole different direction. The Fifth Circuit appeared to have no idea what

role the statute plays, or could or should play, in corporate law.

McMullen was a 34% owner of the Houston Sports Association (HSA),

a corporation which owned the Astrodome and Houston Astros.

194

Partly by

virtue of his large holdings, he became chairman of the board of

directors.

195

Sanders owned 2%.

196

Minority shareholders tried to oust

McMullen by agreeing to vote against him en masse, but they needed

Sanders’s 2%.

197

Sanders initially agreed to participate in the coup but

changed his mind after McMullen promised him greater access within the

Astros’ organization.

198

Specifically, McMullen allegedly promised Sanders

(1) participation in management decisions, (2) access to operational

information, (3) that the baseball staff would be informed of Sanders’s

elevated status; (4) participation in league meetings and league events, (5)

“access to all baseball facilities,” (6) inclusion of Sanders’s shares in any

control block for sale, and (7) that McMullen would vote his own shares to

keep Sanders on the board.

199

These promises induced Sanders to withdraw

from the scheme to oust McMullen, and Sanders claimed he bought another

$4 million worth of HAS stock in reliance on McMullen’s promises.

200

When McMullen failed to perform promise (7) and Sanders lost his board

seat, Sanders sued.

201

Sanders wanted his board seat back, but he also

wanted to be included in the control block, so he sued for breach of

McMullen’s complete contract, not just promise (7).

202

192

868 F.2d 1465 (5th Cir. 1989). The exact date is named in the heading because the statute

was amended in 1989 but not in time to change the result in Sanders, which was already before

the court.

193

I use the second party’s name as a short cite to avoid confusion with the R.H. Sanders

Corp. v. Haves case, discussed supra Part II.F.

194

See McMullen, 868 F.2d at 1466.

195

See id.

196

See id.

197

See id.

198

See id.

199

Id.

200

See id.

201

See id. at 1467.

202

See id.

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The court wrote a short opinion. The court quoted the statute as it had

existed since 1961.

203

After quoting the statute, the court summarily stated

what it thought the statute said, then declared: “This statute thus requires, in

rather verbose fashion, three things: (1) a writing; (2) a deposit . . . at the

corporation’s main office; (3) reference to the agreement on the

certificates.”

204

That is the extent of the court’s statutory analysis. The court

never explained how, or why, without the statute, no promise to vote stock

is enforceable. But that was the unspoken assumption the court adopted

notwithstanding its absence from the statutory language.

The unspoken assumption became the court’s holding. The court held

that McMullen’s promise to vote for Sanders—promise number (7)—could

not be enforced because it was not in writing.

205

The rest of McMullen’s

promises, the court said, would be enforced.

206

The application of the statute to promise number (7) may well have been

in error. The only clue as to why the court adopted this assumption came

later in the analysis, when both Sanders and the court called the statute a

“statute of frauds.”

207

But the statute is not a statute of frauds. Why not?

The Statute of Frauds is itself the actual, explicit negative statement the

court here assumed: “A promise or agreement described in Subsection

(b) . . . is not enforceable unless the promise or agreement, or a

memorandum of it, is (1) in writing; and (2) signed by the person to be

charged . . . .”

208

Other statutes of frauds in the Texas code identically

provide the negative conclusion the court here had to invent.

209

But the

voting agreement statute says no such thing.

210

203

See id.

204

Id.

205

See id.

206

See id. (“In fact, of the seven alleged promises, only the one that required McMullen to

vote his shares so as to keep Sanders on the board is without question controlled by [the statute].

The trial court’s summary judgment on alleged promises not relating to the voting of shares is

therefore reversed and remanded.”).

207

Id. Sanders claimed that McMullen’s part performance excused non-compliance with the

statute, an argument that sometimes wins against a statute of frauds, but the court rejected that

argument because McMullen had not sufficiently performed under such a part performance rule.

Id. at 1467–68.

208

TEX. BUS. & COM. CODE ANN. § 26.01(a) (West 2015); see also, e.g., id. § 26.02(b) (“A

loan agreement in which the amount involved in the loan agreement exceeds $50,000 in value is

not enforceable unless the agreement is in writing and signed by the party to be bound . . . .”).

209

See, e.g., id. § 2.201 (“[A] contract for the sale of goods for the price of $500 or more is

not enforceable by way of action or defense unless there is some writing sufficient to indicate that

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Is that clear? The Statute of Frauds (and other statutes of frauds) is an

affirmative defense to an action on a contract

211

precisely because it (and

they) are stated in this negative way. No plaintiff must show, in order to sue

on a promise covered by the Statute of Frauds, that the promise is in

writing. Such a promise is enforceable under the common law of contracts.

If a person wants the protection of the Statute of Frauds, she must plead the

Statute of Frauds, and if it is not pleaded by the defendant, it is waived.

212

When it is waived, a contract not in writing is enforced even though the

Statute of Frauds applies!

213

The Statute of Frauds does not grant

enforceability.

214

It can only remove it. The voting agreement statute is

quite different even as the court described it. If compliance with the statute

were required to create a binding contract in the first place, as the court

appeared to assume, then pleading compliance with the statute should be

the duty of the plaintiff in her petition.

215

Because that is true, a general

denial should be sufficient to put the matter in issue without any affirmative

pleading.

216

It should be apparent that the voting agreement statute is not a

statute of frauds.

a contract for sale has been made between the parties and signed by the party against whom

enforcement is sought . . . .”); TEX. FAM. CODE ANN. §§ 4.002, 4.006(a)(1) (West 2015) (“A

premarital agreement must be in writing and signed by both parties . . . . A premarital agreement is

not enforceable if the party against whom enforcement is requested proves that: (1) the party did

not sign the agreement voluntarily . . . .”). Other requirements of a writing exist, but they are not

statutes of frauds. For instance, an instrument of conveyance “must be in writing,” TEX. PROP.

CODE ANN. § 5.021 (West 2015), but that is because the identity of land must be clear to the state

which keeps property records and taxes ownership. Section 5.021 is properly called the “statute of

conveyances.” E.g., Reiland v. Patrick Thomas Props., Inc., 213 S.W.3d 431, 437 (Tex. App.—

Houston [1st Dist.] 2006, no pet.).

210

See TEX. BUS. ORGS. CODE ANN. § 6.252 (West 2015).

211

See TEX. R. CIV. P. 94; FED. R. CIV. P. 8(c).

212

See Engelman Irrigation Dist. v. Shields Bros., Inc., 960 S.W.2d 343, 353 (Tex. App.—

Corpus Christi 1997), pet. denied, 989 S.W.2d 360 (Tex. 1998) (per curiam); Kinnear v. Tex.

Comm’n on Human Rights ex rel. Hale, 14 S.W.3d 299, 300 (Tex. 2000) (per curiam).

213

See, e.g., Engelman Irrigation Dist., 960 S.W.2d at 349 (“We conclude that the water

tickets and the Irrigation District’s rule and regulations, taken together, are more than a scintilla of

evidence of an agreement” —and concluding that an agreement existed because the district bound

itself by its own regulations to deliver water on a “first come, first serve” basis).

214

See Rann v. Hughes (1778) 2 Eng. Rep. 18, 22 (H.L.). This was decided before the

common law was adopted by the state of Texas or by any state.

215

See TEX. R. CIV. P. 91a.1; FED. R. CIV. P. 8(a)(2) (mandating that the complaint contain “a

short and plain statement of the claim showing that the pleader is entitled to relief”).

216

See TEX. R. CIV. P. 92; FED. R. CIV. P. 8(b)(3).

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No, the voting agreement statute, starting with its plain language, is

obviously quite different. Whereas a statute of frauds is a negative

statement, and the rights it creates are therefore an affirmative defense, the

voting agreement statute is a positive. It is phrased as a permission, and not

once does it state a negative conclusion on enforceability: “Any number of

shareholders may enter into a voting agreement in writing for the purpose

of voting their shares as a unit . . . .”

217

Nor does it purport to take away

rights that shareholders already have, under the common law or otherwise.

To construe it to include a negative statement that it nowhere states is to

add something beyond the statute’s language. Given the strong public

policy in Texas in favor of contractual freedom, courts should be hesitant to

invent rules that infringe on contracts.

Taking a different tack, Sanders also tried to show that Texas courts do

not require literal compliance with the statute, citing Haves.

218

And the Fifth

Circuit took this argument seriously, on its own terms.

219

This is an extreme

move for the court after proclaiming the statute a statute of frauds. In the

absence of fraud itself, a statute of frauds does quite consciously require

literal compliance.

220

That the court even considered the possibility of

Haves’s precedential status is inconsistent with the court’s supposition that

the voting agreement statute is a statute of frauds. Stated another way, the

possibility of a Haves’s, or a Burnett’s or Irwin’s, treatment of the statute’s

formalities contradicts entirely the McMullen court’s assumption that the

statute is a statute of frauds. It is not a statute of frauds.

The court rejected Haves, anyway.

221

The court purported to distinguish

the case on the ground that all the shareholders in Haves knew of the

agreement, whereas in McMullen they did not.

222

Why did anyone’s

knowledge matter, when the statute does not require that anyone know?

Here as well the court assumed its conclusion: “The [Haves] rule cannot

apply to this case. While Texas courts may not require literal conformity

with the statute, they do at least require that the purpose of the statute not be

217

Act of May 11, 1961, 57th Leg., R.S., ch. 206, § 2, 1961 Tex. Gen. Laws 423 (codified at

TEX. BUS. CORP. ACT art. 2.30B (expired Jan.1, 2010)).

218

R.H. Sanders Corp. v. Haves, 541 S.W.2d 262, 265 (Tex. Civ. App.—Dallas 1976, no

pet.); see supra Part II.F.

219

Sanders v. McMullen, 868 F.2d 1465, 1468 (5th Cir. 1989).

220

E.g., Hooks v. Bridgewater, 229 S.W. 1114, 1117 (Tex. 1921).

221

McMullen, 868 F.2d at 1468.

222

Id.

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undermined.”

223

With this statement, everyone should be on board; of

course the statute’s purpose should be met. The relevant question, though,

is the purpose of the statute. The court continued: “In this case, other

shareholders existed who were totally unaware of the agreement. The notice

element of the statute is therefore unsatisfied.”

224

And that is the court’s

assumption: the purpose of the statute is notice.

Of course, notice can rationally be called one purpose of a statute that

requires deposit with the corporation and that the agreement be subject to

examination. But not notice in a vacuum. What is notice for? Taking Haves

and Irwin together, the law teaches that the point of notice is to prevent

prejudice to other shareholders. If they have notice, then they can prevent

prejudice to themselves without further help from the courts. However, if

there was no prejudice to the other shareholders, then their lack of notice

was irrelevant, and that was the case here. Recall that the court in Irwin

said, “Since White with 7,500 shares and Cocanougher with 500 shares

controlled the majority voting stock and could have accomplished the

objective without the prior agreement, there appears to be no fraud in the

agreement nor undue advantage taken of Irwin.”

225

Could there be any fraud

or prejudice from McMullen’s agreeing to vote for Sanders for a board

position? Did McMullen need an agreement to cast his votes for Sanders?

Because he did not, no other shareholder could have been prejudiced as a

result of McMullen’s binding himself by contract to do so. He had every

right in the world to vote for Sanders. That he did not notify other

shareholders of the fact means nothing. In elevating notice for its own sake

as the purpose of the statute, the Fifth Circuit attempted to graft onto the

law a pointless formality.

Ironies abound in McMullen. First, its mistakes were unnecessary.

McMullen and Sanders agreed that, in exchange for Sanders not voting

against McMullen, McMullen would not only vote for Sanders for director

but also—seemingly independent of Sanders’s board position—involve

Sanders in management (this was promise (1)).

226

Because McMullen

promised to involve Sanders in management merely as a shareholder,

223

Id.

224

Id.

225

Irwin v. Prestressed Structures, Inc., 420 S.W.2d 491, 494 (Tex. Civ. App.—Amarillo

1967, writ ref’d n.r.e.).

226

See supra text accompanying note 199.

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Sanders’s involvement in management would usurp board prerogatives.

227

McMullen’s promise of shareholder management power alone could have

caused the court to strike down the whole agreement.

It is therefore doubly ironic that the court struck down only McMullen’s

promise to vote to put Sanders on the board but then enforced McMullen’s

other promises, including McMullen’s promise to go around the board to

involve a mere shareholder in management. One would think that striking

down a promise always held illegal in Texas law would be more important

than making up a rule refusing to enforce a promise that harmed no one and

was fairly bargained for.

But wait! One final irony should be noted in the McMullen opinion:

consider that all of McMullen’s promises were given in exchange for

Sanders’s not voting against McMullen—Sanders’s voting promise was

thus consideration for all of McMullen’s promises. The court’s allowing

Sanders to sue for breach of McMullen’s other promises implied that

Sanders could orally horsetrade his votes for just about anything but that

McMullen could not legally promise his vote for Sanders without a writing.

It’s a bizarre opinion.

Fortunately, as McMullen was being decided, the Texas legislature was

amending the statute. Read carefully, the amended statute supersedes the

McMullen opinion. Read carefully, the statute also suggests that the better

run of cases in Texas were right all along.

III. THE AMENDED STATUTE: THE ROAD HOME

A. The 1989 Amendment—Probably Works

The statute was substantially amended in 1989.

228

The amendment

confirms this Article’s reading of Haves

229

and the prior version of the

statute

230

as merely adding a remedy. A 1987 amendment abandoned the

227

E.g., Grogan v. Grogan, 315 S.W.2d 34, 39 (Tex. Civ. App.—Beaumont 1958, writ ref’d

n.r.e.); Funkhouser v. Capps, 174 S.W. 897, 899 (Tex. Civ. App.—Fort Worth 1915, writ ref’d);

see supra text accompanying note 11.

228

Act of May 25, 1989, 71st Leg., R.S., ch. 801, § 15, 1989 Tex. Gen. Laws 3610, 3623–24

(codified at TEX. BUS. CORP. ACT art. 2.30 (expired Jan. 1, 2010)).

229

See supra Part II.F.

230

See supra Part II.C.

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10-year limitation in the statute.

231

Thus, the only provision ever imposed in

Texas case law contrary to the reading of the statute as merely an added

remedy

232

was repealed. But the other provisions of the 1989 amendment

clarify greatly what the statute is supposed to do. One has to read the

provisions closely to see this, but some answers are fairly obvious in the

language.

Because these sentences are long, and no one would read them for fun, I

have separated them into separate paragraphs in this recitation and labeled

each sentence [a]-[e] for ease of discussion. Incidentally, the 1989

amendment remains law today except in a couple of particulars, as shall be

noted.

233

[a] Any number of shareholders of a corporation, or any

number of shareholders of a corporation and the

corporation itself, may enter into a written voting

agreement for the purpose of providing that shares of the

corporation shall be voted in the manner prescribed in the

agreement.

[b] A counterpart of the agreement shall be deposited with

the corporation at its principal place of business or

registered office and shall be subject to the same right of

examination by a shareholder of the corporation, in person

or by agent or attorney, as are the books and records of the

corporation.

[c] The agreement, if noted conspicuously on the certificate

representing the shares that are subject to the agreement or,

in the case of uncertificated shares, if notation of the

agreement is contained in the notice sent pursuant to

Section D of Article 2.19 of this Act with respect to the

shares that are subject to the agreement, shall be

specifically enforceable against the holder of those shares

or any successor or transferee of the holder.

[d] [1] Unless noted conspicuously on the certificate

representing the shares that are subject to the agreement or,

231

Act of April 30, 1987, 70th Leg., R.S., ch. 93, § 14, 1987 Tex. Gen. Laws 203, 211

(codified at TEX. BUS. CORP. ACT art. 2.30 (expired Jan. 1, 2010)).

232

See supra notes 175–187 and accompanying text.

233

Cf. TEX. BUS. ORGS. CODE ANN. § 6.252 (West 2012).

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in the case of uncertificated shares, unless notation of the

agreement is contained in the notice sent pursuant to

Section D of Article 2.19 of this Act with respect to the

shares that are subject to the agreement,

the agreement, even though otherwise enforceable, is

ineffective against a transferee for value without actual

knowledge of the existence of the agreement at the time of

the transfer or against any subsequent transferee (whether

or not for value),

[d] [2] but the agreement shall be specifically enforceable

against any other person who is not a transferee for value

from and after the time that the person acquires actual

knowledge of the existence of the agreement.

[e] A voting agreement entered into pursuant to this Section

B is not subject to the provisions of Section A of this

Article [which dealt with voting trusts].

234

The first three sentences contain little that is new. Sentences [a]-[c]

retain the structure of the original: the permissive “may” and the instructive

“shall.” Sentence [c] adds that the agreement will be enforceable against

successors and transferees if endorsed on the shares. Please note that the

endorsement requirement has changed to become a condition with a

privilege: an endorsement will ensure that successors and transferees are

bound, but it no longer appears to be required.

Sentence [d] backs up this change in the endorsement provision, but

sentence [d] also strongly suggests that the statute itself is meant merely to

add a remedy. Sentence [d] for the first time names the consequence of non-

compliance with what was a requirement in the prior statute. It specifies

consequences in two ways, both of which are significant.

First, consider [d] part [1], itself an independent clause in what is a

compound sentence. For ease of thinking through the sentence, forget about

uncertificated shares for the moment. Please read the sentence again:

“Unless noted conspicuously on the certificate . . ., the agreement, even

though otherwise enforceable, is ineffective against a transferee for value

without actual knowledge of the existence of the agreement at the time of

234

Act of May 25, 1989, 71st Leg., R.S., ch. 801, § 15, 1989 Tex. Gen. Laws 3610, 3623–24

(codified at Tex. Bus. Corp. Act art. 2.30 (expired Jan. 1, 2010)).

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the transfer . . . .”

235

Sentence [c] says that an endorsement on the certificate

will make the agreement specifically enforceable against a transferee. This

sentence [d] part [1] shows that making the opposite statement—that if the

certificate is not endorsed, it is not enforceable—was also thought

necessary. Why? The obvious answer is that the statute assumes that,

without this statement, the agreement in fact can be enforceable against

transferees even without an endorsement.

How could it? The assumption is that such agreements are enforceable

against transferees even without the statute’s help. Under what rule could

they be? Perhaps under the common law of contracts and the property rules

that define what it means to be a shareholder! The statute may be, in other

words, relying on the common law to specify what is “otherwise

enforceable.” If the statute simply adds a remedy, that is exactly what

readers should expect.

“Otherwise enforceable” probably also suggests the provisions of

sentence [a], which give permission to enter into written voting agreements.

It is doubtful that a statute would give permission to “enter into . . . [an]

agreement” unless it meant that agreement to be legally enforceable.

236

It is

true that sentence [a] does not say so explicitly, and this may well be

because the sentence also relies on the common law of contracts, or it might

simply be implied. But the writing is the central addition of sentence [a],

since the common law already enforced voting agreements before sentence

[a] became law. Thus, when sentence [d] part [1] says “otherwise

enforceable,” that sentence means to suggest that even having the

agreement written down, as sentence [a] permits, does not make the

agreement binding on a transferee for value without knowledge if a notation

about the agreement is not endorsed conspicuously on the shares.

Perhaps sentence [d] part [1] also meant to include sentence [b] in its

reference to law that makes the voting agreement “otherwise

enforceable.”

237

The point is hardly clear because the statute never specifies

what legal effect depositing the agreement is supposed to have, but sentence

[d][1] would clearly apply to save a transferee even if the written agreement

was “deposited with the corporation” as sentence [b] appears to mandate.

238

235

Id. at 3624. This provision is substantively the same as the current TEX. BUS. ORGS. CODE

ANN. § 6.252(e), reviewed infra Part III.B.

236

Id. at 3623.

237

Id. at 3624.

238

Id. at 3623.

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What to conclude from this? Two things. First, the sentence means what

it says—the negative statement that the transferee is not bound in the

conditions specified. But, second, the statute also implies the positive that

the agreement binds a transferee for value with actual knowledge of the

existence of the agreement at the time of the transfer. By specifically

excluding from liability the transferee without knowledge, the statute

implies that the transferee for value with knowledge of the agreement would

be bound even without a conspicuous statement!

This implication becomes more significant when read in conjunction

with sentence [d] part [2]. Sentence [d] part [2] says that, notwithstanding

everything that has gone before in the sentence, “the agreement shall be

specifically enforceable against any other person who is not a transferee for

value from and after the time that the person acquires actual knowledge of

the existence of the agreement.”

239

Finally, a clear statement. Read in plain terms, the second part of

sentence [d] does not depend on anything in the statute. The phrase “even

though otherwise enforceable” does not modify this clause; it modifies only

the preceding clause, [d][1]. Part [d][2] does not depend on depositing the

agreement with the corporation or its availability for examination.

240

depends only on whether the person bound by the agreement knows about

it. This will include, obviously, the parties to the agreement! The parties

always have “actual knowledge of the existence of the agreement!”

241

So,

by this statement’s plain terms, the parties will be bound and the agreement

specifically enforced against them. The statement will also include

transferees, for value or not, if the agreement purports to bind them.

The fourth sentence of the paragraph, in a reference to “anyone not a

transferee for value,” seems an obscure place to put the ultimate conclusion.

Only there and only at this point in the language (and at this late date in the

statute’s drafting history) does the statute reveal the background assumption

against which the statute is written: namely, that these agreements were

enforceable under the common law of contracts, and the statute does not

mean to upset that, and all the statute is offering is an additional remedy—

specific enforcement. That is why what seems like an ultimate conclusion

appears so obscure: we were already supposed to know it! Freedom of

contract is, after all, a fundamental policy of Texas law.

239

Id. at 3624 (emphasis added).

240

Id.

241

Id.

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There is one difficulty left in the 1989 statutory language: sentence [c]

also seems to propose a rule for specific enforcement, and this sentence not

only names specifically the persons it covers—”the holder of those shares

or any successor or transferee of the holder”—but also appears to condition

specific relief on a notation about the voting agreement being placed on the

certificates themselves or sent by the corporation to the holder or successor

or transferee.

242

This is the endorsement condition mentioned in Part I. It

seems an odd provision: it seems to require that notice be given of the

agreement to the parties themselves, but they obviously already know of it.

Also, it seems to condition enforcement of a voting agreement between

private shareholder parties on action by the corporation in case of

uncertificated shares. So the corporation might have an effective veto over

whether the agreement could be enforced under the statute if the shares

were uncertificated.

Moreover, does sentence [c] trump sentence [d]? We just concluded that

the statute finally reached a clear position. Do we now have to revise? I do

not believe so, for the following reasons.

First, that would be a major change from the prior iteration of the statute

and best case law, which had no such condition, especially where the parties

themselves are concerned.

Second, there is nothing inconsistent about offering specific

enforcement on two different, technically consistent grounds. From the

standpoint of policy, clause [d][2] is primary in this regard: if a person

knows that a voting agreement binds her, then she is bound to it. Sentence

[c] follows up: if a person has notice by these regulated means that a voting

agreement binds her, then she should be bound to it. Clause [d][2] covers

actual knowledge, and sentence [c] constructive knowledge. It is not

inconsistent to impose liability on those who know and also on those who

242

Id. Act of May 29, 1983, 68th Leg., R.S., ch. 442, § 3, 1983 Tex. Gen. Laws 2511, 2565–

66 (codified at TEX. BUS. CORP. ACT art. 2.19D (expired Jan. 1, 2010)) read as follows:

D. In accordance with Chapter 8, Business & Commerce Code, a corporation shall,

after the issuance or transfer of uncertificated shares, send to the registered owner of

uncertificated shares a written notice containing the information required to be set forth

or stated on certificates pursuant to this Act. Except as otherwise expressly provided by

law, the rights and obligations of the holders of uncertificated shares and the rights and

obligations of the holders of certificates representing shares of the same class and series

shall be identical. No share shall be issued until the consideration therefor, fixed as

provided by law, has been fully paid.

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fairly have constructive notice. But, of course, the tail should not wag the

dog. Knowledge trumps over constructive knowledge, so if a person has

knowledge, the lack of constructive notice is irrelevant.

The language of the two sentences is consistent with this explanation.

Sentence [c] does not say that, without the endorsement, specific

enforcement is not possible. It only says it will be granted if the

endorsement has been given. That clause [d][2] also offers a path to specific

enforcement does not detract from this. This may be why clause [d]’s “any

other person” is a broader category than sentence [c]’s “the holder of those

shares.”

243

I admit that the statute is drafted in a confusing way because the

“against” clauses in the two subsections have different objects, but I submit

this is a drafting inconsistency, and no more.

Third, though the “against” clause objects differ, clause [d][2]’s “any

other person” is, as noted, broader than sentence [c]’s “the holder of those

shares or any successor or transferee.”

244

The broader category should have

primacy. Moreover, though the words describing the object differ, I cannot

imagine a difference in practice. Who will be bound by a voting agreement

other than the owner of the shares, a successor, or a transferee? They are the

only ones with a right to vote. I believe they are the same categories for all

practical purposes.

Fourth, and finally, policy requires it. Parties to voting agreements

ought to be bound by them, and they always know about them—their

signature is on them. So the fact that they have no constructive notice of

them should not matter. Construing a constructive notice provision to

override a knowledge provision is morally wrong and unfair to the other

parties to the agreement. It encourages cheating or at least opportunism.

Inasmuch as it overrides the bargain the parties have made, it is

economically inefficient.

For these reasons, I do not believe that the separation of sentences [c]

and [d] into separate provisions makes any difference. We should take the

statute at its plain meaning, and the statute plainly says that “the agreement

shall be specifically enforceable against any other person who is not a

transferee for value from and after the time that the person acquires actual

243

Act of May 25, 1989, 71st Leg., R.S., ch. 801, § 15, 1989 Tex. Gen. Laws 3610, 3624

(codified at Tex. Bus. Corp. Act art. 2.30 (expired Jan. 1, 2010)).

244

Id.

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knowledge of the existence of the agreement.”

245

For the parties, that

moment will be when the agreement forms.

B. Today’s Iteration, TBOC § 6.252—Works Even Better

The TBOC changed the voting agreement provision only slightly. The

understanding restored by the 1989 amendments persists, with one

important caveat. The code now reads as follows:

(a) Except as provided by this code or the governing

documents, any number of owners of a domestic entity, or

any number of owners of the domestic entity and the

domestic entity itself, may enter into a written voting

agreement to provide the manner of voting of the

ownership interests of the domestic entity. A voting

agreement entered into under this subsection is not part of

the governing documents of the domestic entity.

(b) A copy of a voting agreement entered into under

Subsection (a):

(1) shall be deposited with the domestic entity at

the domestic entity’s principal executive office or

registered office; and

(2) is subject to examination by an owner, whether

in person or by the owner’s agent or attorney, in

the same manner as the owner is entitled to

examine the books and records of the domestic

entity.

specifically enforceable against the holder of an ownership

interest that is the subject of the agreement, and any

successor or transferee of the holder, if:

(1) the voting agreement is noted conspicuously on

the certificate representing the ownership interests;

245

Id.

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384 BAYLOR LAW REVIEW [Vol. 68:2

(2) a notation of the voting agreement is contained

in a notice sent by or on behalf of the domestic

entity in accordance with Section 3.205, if the

ownership interest is not represented by a

certificate.

(d) Except as provided by Subsection (e), a voting

agreement entered into under Subsection (a) is specifically

enforceable against any person, other than a transferee for

value, after the time the person acquires actual knowledge

of the existence of the agreement.

(e) An otherwise enforceable voting agreement entered into

under Subsection (a) is not enforceable against a transferee

for value without actual knowledge of the existence of the

agreement at the time of the transfer, or any subsequent

transferee, without regard to value, if the voting agreement

is not noted as required by Subsection (c).

(f) Section 6.251 does not apply to a voting agreement

entered into under Subsection (a).

246

The substance of the statute has not changed much. The language was

broadened to apply to all business entities. Subsection (a) adds that the

voting agreement is not a governing document. This is of course true: it is at

most a contract the entity enters.

The key language of the statute, however, remains the same. What

appeared in sentences [c] and [d] in the prior version now appears in

subsections (c), (d), and (e). While subsections (c) and (e) track the effect of

endorsement, as sentences [c] and [d] did in the prior statute, subsection (d)

in the current provision clearly separates the ultimate legal statement from

the other provisions about endorsements, more clearly declares its

generality, and specifies its result more absolutely:

Except as provided in Subsection (e), a voting agreement

entered into under Subsection (a) is specifically enforceable

against any person, other than a transferee for value, after

246

TEX. BUS. ORGS. CODE ANN. § 6.252 (West 2012). The section was amended in 2003, as

part of the TBOC, and again in 2007. Act of May 23, 2007, 80th Leg., R.S. ch. 688, § 39, 2007

Tex. Gen. Laws 1267, 1277–78.

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the time the person acquires actual knowledge of the

existence of the agreement.

247

This section is now the heart of the voting agreement law. There is

nothing here about endorsements. This is merely a statement of liability.

Transferees for value are separated out as an exception by commas because

the subsection is not about them; it is about the more general “any person”

who is covered by a voting agreement. As with the prior provision,

subsection (d) says nothing about the agreement being deposited and

examined; the subsection’s statement by its plain language is true without

regard to whether the corporation has the agreement and what the

corporation does with it. It says, plainly, “a voting agreement entered into

under Subsection (a) is specifically enforceable against any person . . . after

the time the person acquires actual knowledge of the existence of the

agreement.”

248

As with the 1989 statute, the current iteration retains the potentially

misunderstood language of subsection (c). That language has exactly the

same problems it did under the prior statute. It promises specific

enforcement against the same “holder of an ownership interest that is the

subject of the agreement” if the endorsement on the shares exists or was

sent by the corporation.

249

But this language should not be taken to be the

exclusive path to liability for the reasons noted above, which still apply.

The language stayed substantially the same as prior law, so no change was

intended.

250

Second, (d) and (c) impose liability when there is knowledge

and constructive knowledge, respectively, as before, and there is nothing

inconsistent about liability for either or for both. Of the two, knowledge is

most central, and constructive knowledge (should have known) is a second-

best ground for liability. Subsection (c) does not forbid liability without

endorsement; it only prescribes liability when it exists, and subsection (d)’s

language (“any person”) is broader. For policy reasons, (d) should be

applied literally. It remains the core of the section. Keeping it at the core is

most consistent with freedom of contract.

The only major change in the relatively new TBOC provision is that

now each subsection explicitly applies only to “a voting agreement entered

247

Id. § 6.252(d).

248

Id.

249

Id. § 6.252(c).

250

The committee that drafted the TBOC also commented that its provisions “are materially

the same as those found in the TBCA.” Id. § 6.252 revisor’s note.

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into under Subsection (a).”

251

Subsection (a) requires that the agreement be

in writing. So, if a shareholder wants the benefits of specific enforcement

under subsection (d), the agreement must be in writing. This was not

obvious under the 1989 version, but a writing is now obviously required to

gain the statute’s benefits. But that is the only new requirement of

subsection (d) and of the statute as a whole.

Aside from this, the statute retains the permissive language in

subsection (a): “may enter.” There is no reason in the statutory language to

believe that the statute preempts the common law of contract. While the

statute creates a clear path to specific enforcement, the statute does not say

that another agreement might not generate other contractual liabilities. The

statute is quite broad. It purports to grant permission for written agreements

between “owners . . . or any numbers owners . . . and the . . . entity

itself.”

252

But even this broad statute does not apply to voting agreements

with non-owners, including with the entity itself. These agreements are left

to the common law. That owners and non-owners sometimes form contracts

on the manner in which ownership interests will be voted

253

is one more

reason to hold that the common law governing voting agreements still

governs when the statute does not. One could hardly suppose that a statute

not covering such agreements would, by implication, leave them

ungoverned.

Incidentally, this most recent iteration of the code supports this Article’s

analysis of what was called by McMullen a notice requirement. The analysis

supra of McMullen reasoned that the statute was not about notice for its

own sake.

254

It was about prejudice. Now the language of the current

251

Id. § 6.252(c).

252

Id. § 6.252(a).

253

So, for instance, a sale after a record date of all of a person’s stock to a person who did not

own any prior to the sale might involve an agreement that the seller retain the right to vote.

Delaware has suggested such a vote might not be legal because of the misalignment between “the

interests of voters and the interests of the residual corporate risk bearers.” Commonwealth Assocs.

v. Providence Health Care, Inc., 641 A.2d 155, 157–58 (Del. Ch. 1993) (“These considerations

lead me to doubt whether, in a post record-date sale of corporate stock, a negotiated provision in

which a beneficial owner/seller specifically retained the “dangling” right to vote as of the record

date, would be a legal, valid and enforceable provision, unless the seller maintained an interest

sufficient to support the granting of an irrevocable proxy with respect to the shares.”); see also

Hewlett v. Hewlett-Packard Co., No. CIV.A. 19513–NC, 2002 WL 818091, at *12, *15 (Del. Ch.

Apr. 30, 2002) (ruling on allegations that HP management had improperly coerced a shareholder

into voting for the HP-Compaq merger, and exonerating HP’s management).

254

See supra notes 152–156, 187–191 and accompanying text.

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version proves the point. The parties are always bound no matter who else

knew about the voting agreement. The current subsection about transferees

does not detract from this:

An otherwise enforceable voting agreement entered into

under Subsection (a) is not enforceable against a transferee

for value without actual knowledge of the existence of the

agreement at the time of the transfer, or any subsequent

transferee, without regard to value, if the voting agreement

is not noted as required by Subsection (c).

255

The only exception to (d) is for transferees who did not know, but not

every transferee. Only transferees for value take free of the agreement if it

is not endorsed on the shares. For them, prejudice can be presumed: they

thought they were buying voting power along with the other ownership

rights. Their transferees piggyback on that prejudice, and so should also

take free. The notice requirement is for these investors. But all other

transferees are bound once they know, regardless of notations and

endorsements. They are free from this prejudice. Thus, the current statute

limits the notice and knowledge ideas to those who really need it. This and

the otherwise absolute statement in subsection (d) entirely undercut the

McMullen case’s reasoning about a notice requirement.

256

The statute has

no purely formal notice requirement.

C. Residual Policy Concerns

1. Harmony with Other Law

a. Texas Case Law.

This Article’s view of the state of the law harmonizes all prior Texas

law on voting agreements except the erroneous Roberts.

257

The McMullen

case’s reasoning should be rejected, but a court today might well reach the

same result on the ground that the agreement there involved a transfer of

management right away from the board to a shareholder.

258

The

255

TEX. BUS. ORGS. CODE ANN. § 6.252(e).

256

See supra notes 218–24 and accompanying text.

257

See generally Roberts v. Whitson, 188 S.W.2d 875 (Tex. Civ. App.—Dallas 1945, writ

ref’d w.o.m.); see supra Part II.B.

258

See supra notes 226–27 and accompanying text.

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management problem aside, a McMullen court now might resolve the case

by denying specific enforcement because McMullen’s promise was oral and

therefore the statute does not apply. In that case, assuming the Sanders-

McMullen agreement did not offend another statute (forgetting the

management problem for the moment), a separate remedy might apply.

Perhaps McMullen could be subject to a negative injunction against voting

his shares at all unless he votes for Sanders. That probably would have

given McMullen (the controlling shareholder) all the incentive he needed to

keep his contract! The other promises McMullen made (such as including

Sanders in the control group for purposes of a sale) could have been

specifically enforced. Besides these, the statute as it now stands is

consistent with prior law. Withers, Burnett, Irwin, and Haves can more or

less retain persuasive precedential value.

259

b. Other States’ Statutes.

Understood as outlined in this Part III, Texas law is in harmony with the

law of other states across the nation. Notwithstanding the Texas statute

purports to add burdens to voting agreements—deposit and examination,

and the appearance of a duty to endorse in subsection (c), subsection (d) of

the statute resolves absolutely that a written voting agreement is the only

necessity under the statute for specific enforcement.

260

This is the position

of the Model Act adopted in nearly every other state.

261

The case law of

other states conforms generally to those statutes. This understanding of the

Texas voting agreement statute thus renders Texas law consistent with

hornbook law on the subject.

262

The widespread agreement on the hornbook

rule testifies to its usefulness, its reasonableness, and its congruity with the

rest of corporation law and with general expectations of investors and

business people. If Texas wishes to attract investors to Texas businesses, its

laws cannot undercut those reasonable expectations much, and should not

without very good reason.

It is true that Texans often take pride in going it alone, but this Article’s

view of the statute confirms that Texans retain freedom of contract with

respect to shareholder agreements (and their property right to vote) and that

they are able to bind themselves to exercise their rights in potentially

259

See supra Parts II.A., D.–F.

260

See supra Part III.B.

261

See supra notes 28–32 and accompanying text.

262

See supra note 95 and accompanying text.

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beneficial ways without satisfying costly and unnecessary regulation. The

existence of a residual common law supporting voting agreements also

supports that freedom. Asserting rights under the common law apart from

the safe harbor of the statute may be more costly, but it is a reasonable

position and in the end reaches the same result.

c. Voting Agreement Policy.

The remarkably coherent view taken nationally and by this Article’s

view of the Texas statute maximizes the planning capability of business

people. When they act reasonably by obtaining legal help, they can be sure

to create a shareholder voting agreement that is enforceable under the

statute. When they act reasonably even without obtaining legal help, then

their shareholder voting agreement will still be enforceable as long as they

have agreed to vote as they could have done without the agreement and so

long as no other shareholder is unfairly prejudiced. A shareholder with

knowledge of the agreement is probably not prejudiced by it, the statute

suggests. And, as Irwin showed, a shareholder who has less influence

because parties to such an agreement vote according to its terms is also not

prejudiced.

263

Such a shareholder has suffered no injury other than one he

could have suffered even had the agreement not existed.

That the voting agreement is at its root governed by contract law is an

assumption most courts make. In Ritchie v. Rupe,

264

the Texas Supreme

Court described how shareholders in close corporations protect themselves

by contract:

Sometimes, they enter into shareholder agreements to

define things like their respective management and voting

powers, the apportionment of losses and profits, the

payment of dividends, and their rights to buy or sell their

shares from or to each other, the corporation, or an outside

party. Occasionally, things don’t work out as planned:

shareholders die, businesses struggle, relationships change,

and disputes arise. When, as in this case, there is no

shareholders’ agreement, minority shareholders who lack

263

See supra notes 149–156 and accompanying text.

264

443 S.W.3d 856 (Tex. 2014).

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both contractual rights and voting power may have no

control over how those disputes are resolved.

265

Affirming the importance of contractual power to resolve these disputes

in advance, the Ritchie decision encourages shareholders to engage in just

the sort of agreement this Article addresses.

266

d. Voting Trusts Distinguished.

The Texas voting agreement statute shows a similarity with Texas’s

voting trust statute. Given that Texas was one of the first states to write a

voting agreement statute, and no model act existed at the time, it is possible

that its voting trust statute was the model for its voting agreement statute.

Texas’s voting trust statute contains a provision requiring a copy of a voting

trust to be deposited with the entity and be subject to shareholder

examination.

267

The language of the deposit and examination sections of the

two laws is remarkably similar.

268

There is one major difference: the voting

trust must be examinable by holders of the beneficial interest in the trust.

269

These might be the original trustors or their successors in interest, but the

trustees legally own the shares, so these are not “owners” of shares and

need a separate examination provision.

Notwithstanding the similarity of the two statutes’ language, their

policies are completely different. The corporation and other shareholders

have a need to know about a voting trust for reasons that do not apply to a

voting agreement. “Owners” vote, including shareholders of corporations

and members of limited liability companies.

270

Business entities must keep

a record of their owners,

271

and the entity must rely on these records in

265

Id. at 878–79, quoted again in the later case of Sneed v. Webre, 465 S.W.3d 169, 177–78

(Tex. 2015).

266

Ritchie, 443 S.W.3d at 879 (reasoning that “corporations and the relationships among

those who participate in them . . . are largely matters governed by statute and contract,” then

denying a statutory remedy); id. at 881 (“Of course, shareholders may also prevent and resolve

common disputes by entering into a shareholders’ agreement to govern their respective rights and

obligations . . . . [A]lthough [these litigants] did not enter into a shareholders’ agreement, they

certainly could have done so . . . .”); id. at 882 (noting breach of contract as a claim often brought

between shareholders in close corporations).

267

TEX. BUS. ORGS. CODE ANN. § 6.251 (West 2012).

268

Compare id. § 6.251(c), with id. § 6.252(c).

269

Id. § 6.251(c)(2).

270

Id. § 1.002(63) (West Supp. 2015).

271

Id. § 3.151(a)(3) (West 2012), § 21.173 (West 2012).

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determining who may vote and also who may receive distributions, notices,

and so on.

272

Every business entity involving owners would grind to a halt if

the business could not rely on its records to know the identity of its owners.

A voting trust alters the legal ownership of the interests subject to the

trust.

273

So, for voting purposes, a voting trust trustee becomes the owner or

member.

274

(For other purposes, the voting trust beneficiary retains the

rights of an owner.

275

) The entity must know that this has occurred in order

for it to know who its owners are and who can vote, so some kind of deposit

is required. Also, for practical reasons, the corporation cannot recognize a

vote by a person claiming to be a voting trustee without evidence of the

document. So the “deposit” part of the voting trust statute is self-executing,

and no need exists for any remedy for failure to deposit.

The mere voting agreement presents an entirely different situation.

There is no similar need to deposit or examine. A voting agreement does

not alter ownership of shares. In a voting agreement, a shareholder agrees to

vote in a certain way. The shareholder casts the votes. The owner remains

the same. There is no need for anything in the records of the corporation to

change. So subsection (d) of TBOC section 6.252 reaches exactly the right

conclusion when it declines to condition enforceability of a voting

agreement on filing the agreement with the corporation. It is possible for a

voting agreement to create a proxy as an enforcement mechanism, but the

creation of proxies is governed by statutes that address proxies. Obviously,

the corporation would need to know if a proxy was to vote, but the proxy

rules provide notice to the corporation in that case.

276

There simply is not a

272

See id. § 1.002(53) (West Supp. 2015), §§ 101.001(1), 21.201(a) (West 2012).

273

Id. § 6.251(b) (West 2012) (“An ownership or membership interest that is the subject of a

voting trust agreement . . . shall be transferred to the trustee named in the agreement for purposes

of the agreement.”).

274

Id. § 6.251(a).

275

See id. §§ 21.218 (inspection rights), 21.551(2) (right to sue derivatively).

276

See id. § 21.367.

(a) A shareholder may vote in person or by proxy executed in writing by the

shareholder. (b) A telegram, telex, cablegram, or other form of electronic transmission,

including telephonic transmission, by the shareholder, or a photographic, photostatic,

facsimile, or similar reproduction of a writing executed by the shareholder, is

considered an execution in writing for purposes of this section. Any electronic

transmission must contain or be accompanied by information from which it can be

determined that the transmission was authorized by the shareholder.

Id.

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substantial reason why a voting agreement must be deposited with the

corporation and be on display, which is why every other state has rejected

such a burden. Of course other shareholders may want to know that such an

agreement exists; perhaps that (rather than blind following of the trust

statute) is the genesis of the suggestion that it be provided. But I cannot

think of a reason why the other shareholders should have a right to know. If

their rights are not affected, it really is none of their business. So it is

appropriate that the voting agreement statute omits a remedy for failure to

inform the entity of the agreement so that it can be placed on display.

I can imagine why corporate actors would want to keep subsection (b) in

the code. They would like plotters to inform current corporate management

of their plans. It’s a way for controllers to put an early lid on anyone who

would try to take control, or at least to argue afterward that the upstarts

have done something untoward (like agree to do what they have every right

to do). I cannot think why preserving this argument for those in control is a

good idea. It seems to put a thumb on the scales in favor of current

management. Why should the law do that?

Mere symmetry with voting trusts is no reason at all to have similar

requirements. In fact, some such thought may be why Texas has the

provision. Delaware decided in Abercrombie v. Davies

277

in 1957 that a

kind of vote pooling agreement which provided that pooled shares would be

placed in escrow, proxies would vote the pooled shares, and a certain

percentage of the proxies could agree to remove the pooled shares from

escrow and place them in a voting trust—that this arrangement was in effect

a voting trust and should be governed by the voting trust statute.

278

In the

process, Delaware declared that voting trusts were illegal without statutory

authorization, implying that compliance with every part of the statute was

required for deals deemed a voting trust.

279

The Delaware decision invoked

critical commentary.

280

It may well be that Texans in 1961, reacting to

Abercrombie, decided that imposing on voting agreements the same

formalities as were required of voting trusts would solve the problem—by

277

Abercrombie v. Davies, 130 A.2d 338 (Del. 1957).

278

Id. at 341–45.

279

Id. at 344.

280

E.g., Recent Development, Close Corporations: Voting Trust Legislation and Resolution

of Deadlocks, 67 COLUM. L. REV. 590 (1967); Gary D. Berger, The Voting Trust: California

Erects a Barrier to a Rational Law of Corporate Control, 18 STAN. L. REV. 1210, 1211 n.8

(1966); Comment, Voting Agreement or Voting Trust? A Quandary for Corporate Shareholders,

10 STAN. L. REV. 565, 567–68 (1958).

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obviating the need to make a distinction between the two.

281

In 1961, the

Texas statute did in fact require the same formalities of voting trusts (an

older provision passed in 1955) that the then new voting agreement statute

purported to require.

282

But voting trusts are not the same kind of legal

instrument at all, as discussed above. Voting trusts should be disclosed to

the entity and other shareholders. They confer on a trustee a right to vote

shares, and the entity must know who will vote. Mere voting agreements do

no such thing, and there is no similar need.

2. Prejudice to Other Shareholders

Notice finally that this statute, like its predecessor but unlike the

common law, makes no mention of prejudice to other shareholders (except

for the carve-out for transferees of value, as discussed

283

): a finding of no

fraud or prejudice is not required. Why? Probably the omission of this

concern is proper, because the source of prejudice (other than to a transferee

for value who could not have known) is the breach of an independent legal

duty not part of the voting agreement. So, for instance, a separate statute

specifies that a corporation will be managed by the board of directors.

284

voting agreement that purported to directly manage would violate this

provision (unless, of course, the agreement was unanimous among

shareholders, in which case a separate statute grants authority

285

). Vote-

buying is wrong because it involves company management in a fiduciary

breach;

286

or involves some fraud or attempt to disenfranchise other

281

Miller and Ragazzo describe at least part of the 1961 amendment as a reaction to

Abercrombie. See 13 MILLER & RAGAZZO, supra note 1, § 45:2 n.12 (“This provision [§ 6.252(f)]

is designed to reverse the result in a leading Delaware case, Abercrombie . . . .”). The decision

(along with Whitson) was criticized in a note in the Texas Law Review in 1958, and this note

recommends such a provision. Reynolds, supra note 100, at 511 (“In the event the Legislature

chooses to sanction directly the voting agreement in Texas, it would seem desirable to include a

similar provision for the benefit of shareholders not parties to the agreement, so that they too may

know by whom and in what manner the corporation is controlled.”). Reynolds notes that the state

bar committee proposing legislation considered a voting agreement provision even before

Abercrombie, but withdrew it. Id. at 511 n.16.

282

Act of May 29, 1955, 54th Leg., R.S., ch. 64, art. 2.30, 1955 Tex. Gen. Laws 239, 256

(codified at TEX. BUS. CORP. ACT art. 2.30 (expired Jan. 1, 2010)).

283

See supra notes 254–255 and accompanying text.

284

TEX. BUS. ORGS. CODE ANN.§ 21.401 (West Supp. 2015).

285

See id. § 21.101 (West Supp. 2015), § 21.714 (West 2012).

286

Macht v. Merchs. Mortg. & Credit Co., 194 A. 19, 22 (Del. Ch. 1937); Hewlett v. Hewlett-

Packard Co., No. CIV.A. 19513–NC, 2002 WL 818091, at *12, *15 (Del. Ch. Apr. 30, 2002)

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394 BAYLOR LAW REVIEW [Vol. 68:2

shareholders, thus impinging on their rights;

287

or separates economic and

voting interests of shares, thus undermining the purpose of shareholder

voting.

288

Plenty of independently significant laws support those results

289

without a separate “prejudice” provision of law governing voting

agreements generally. And of course a voting agreement that involved an

independent breach of fiduciary duty would be unenforceable for that

reason.

IV. AMENDMENT

In the end, I thus have no quarrel with the statute as it stands, provided it

is interpreted according to its clear language, as this Article outlines.

However, the statute’s language, while clear enough to govern, is hardly a

model of clarity. If its meaning becomes clear only after an examination of

the prior case law and statutes and an in-depth examination of its logic and

language, perhaps an amendment would be helpful. My studies of other

states’ code provisions suggest that the Texas statute could be re-stated to

helpful effect.

It appears the Texas statute performs seven functions:

1) Permits owners to enter into a written voting agreement

as a condition of specific enforcement (subsection (a));

2) Declares that such a voting agreement is not a governing

document (subsection (a));

3) Holds that the voting agreement is specifically

enforceable against the parties to the agreement (subsection

(d));

4) Holds that the voting agreement is specifically

enforceable against all transferees and successors if the

voting agreement is endorsed on the shares or, for

(ruling on allegations that HP management had improperly coerced a shareholder into voting for

the HP-Compaq merger, and exonerating HP’s management); Brady v. Bean, 221 Ill. App. 279,

283–84 (1921).

287

Schreiber v. Carney, 447 A.2d 17, 24–26 (Del. Ch. 1982).

288

Crown EMAK Partners, LLC v. Kurz, 992 A.2d 377, 388 (Del. 2010); Kurz v. Holbrook,

989 A.2d 140, 178–81 (Del. Ch. 2010), aff’d in part, rev’d in part sub nom., Crown EMAK

Partners, LLC v. Kurz, 992 A.2d 377 (Del. 2010).

289

See in particular the discussion in Holbrook, 989 A.2d at 179–80.

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2016] SHAREHOLDER AND MEMBER VOTING AGREEMENTS 395

uncertificated shares, the subject of a notice sent by the

corporation to the transferee or successor (subsection (c)),

5) Holds that the voting agreement is specifically

enforceable against any transferee or successor from the

time the transferee or successor knows of the existence of

the agreement binding the shares (presumably the

agreement will not be enforceable against anyone contrary

to its terms?), except a transferee for value (subsection (d)).

6) Declares that the voting agreement is not a voting trust.

7) Suggests that a copy of the voting agreement be

deposited with the corporation and be examinable.

Some things the statute does not do. Most significantly, the Texas

statute does not explicitly provide for specific enforcement when the

transferee for value actually knows that the voting agreement binds the

shares but the shares lack an endorsement (or notice if uncertificated).

Under subsection (d), the knowledge section does not apply to transferees

for value at all. Subsection (e) makes quite clear that the statute is serious

about the exception for transferees for value in subsection (d), and includes

subsequent transferees, but it appears to perform no other function. The

sections work well for the transferee who gained knowledge after paying

for the shares, but what if the knowledge came before? Did the statute mean

to except transferees with actual knowledge from liability? It seems an odd

thing to do if transferees are to be bound at all (which is not a foregone

conclusion, as binding transferees is to bind outside the bounds of contract;

only a property concept of shares could allow a contract liability to come to

“run with the shares”).

290

For example, the transferee may have signed a

stock purchase agreement with the voting agreement incorporated and

attached, and she would not be bound to specifically perform this? Really?

Why not?

290

So, the Minnesota legislature notes in the comments to its voting agreement statute:

The agreement is valid and binding upon all those who sign it, even though less than all

or even less than a majority of, shareholders are parties to the agreement. Successors to

or transferees of the shares of parties are not bound by the agreement unless they

become parties to the agreement. This is consistent with the notion that the voting

agreement is based on individual contract and not on status as a shareholder.

MINN. STAT. § 302A.455 reporter’s notes, gen. cmt. (1981).

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396 BAYLOR LAW REVIEW [Vol. 68:2

Along the same lines, the Texas statute appears to impose liability on

transferees and successors whether the voting agreement by its terms binds

them or not. This is odd. The voting agreement is a contract. Shareholders

cannot by agreeing among themselves change the terms of their contract

with the corporation, so they cannot change the property rights in the shares

themselves. However, they can bind their transferees and successors by

contract, but the contract itself should so provide. Nowhere is that required

in the Texas provision, and it should be.

Having established what the statute does and does not do, one could ask

still why it needs to be re-written. Here are my reasons. The statute reads

like a permission but leaves unclear whether it preempts the field—does the

common law survive or not? The case law suggests that the common law

survives. The deposit and examine requirement is toothless, unclear, and

not justified as a matter of policy; it should be removed. The statute should

say clearly (and without needing a 64-page Article to explain) that the

parties to a written voting agreement are bound to perform it specifically;

what the statute says now is clear but only to those who dig very deep. The

transferee provisions should be cut off from the statement about the parties

and handled separately, so they confuse no one. The common law that

continues to allow binding voting contracts outside of the statute should be

preserved, or not, but at least the matter should be made clear. And what the

statute leaves out should be included: a transferee for value with actual

knowledge at the time of the transfer should be bound specifically to

perform an agreement that purports to bind her. Liability of transferees and

successors should follow only when the contract provides it.

How to do these things? I would suggest beginning with the Model Act.

This is, after all, where the Texas statute ends up, substantively. The Model

Act is clear and concise. It could be modified to fit Texas nomenclature.

After that, other states have successful statutes from which provisions could

be borrowed, also modified slightly. In what follows, I have borrowed

provisions from the statutes of Delaware, Florida, Kansas, Rhode Island,

and Tennessee. The following statute reaches all the goals I set forth. Of

course, no one will enact it as written here, because statutes are drafted by

committees and passed by legislatures. But this is a good start, and I hope

the statute will in the end look something like this. It is better, and it

illustrates, in conclusion, the arguments made in this Article. Thank you for

reading.

(a) Two or more owners or one or more owners and the

domestic entity may provide for the manner in which they

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2016] SHAREHOLDER AND MEMBER VOTING AGREEMENTS 397

will vote their ownership interests by signing a written

agreement for that purpose. A voting agreement created

under this section is not subject to the provisions of section

___ [as a voting trust].

(b) A voting agreement created under this section is

specifically enforceable against the parties thereto.

to the terms of a voting agreement authorized by subsection

(a) shall be bound by such agreement and such agreement

shall be specifically enforceable against such transferee or

successor if the transferee or successor (1) takes such

interests with notice of such agreement or, (2) except for a

transferee for value or a successor thereof, has actual

knowledge of such agreement, whether at the time of the

transfer or later, from the time the transferee or successor

has such actual knowledge. A transferee or successor shall

be deemed to have notice of any such agreement if:

(1) the existence thereof is noted conspicuously on the

certificate representing the ownership interests;

(2) a notation of the voting agreement is contained in a

notice sent by or on behalf of the domestic entity in

accordance with Section 3.205, if the ownership interest is

not represented by a certificate; or

(3) the transferee or successor has actual knowledge of

such agreement at the time of the transfer;

(d) This section is permissive and should not be interpreted

to invalidate any voting or other agreement among

shareholders.

(e) Nothing in this section shall impair the right of the

domestic entity to treat owners of record as entitled to vote

the ownership interest standing in their names.