Owner agreements: the provisions checklistAcuerdos entre socios: la checklist de cláusulas
What a partnership, operating or shareholders' agreement must settle before the fight starts, following chapter 3.Lo que un convenio de socios, operating agreement o convenio de accionistas debe resolver antes de que empiece el pleito, siguiendo el capítulo 3.
- Employment and compensation of working ownersEmpleo y remuneración de los socios que trabajan: Salary, duties, term, bonuses tied to profit, and what counts as cause for termination. Without it, the majority can fire a co-owner and starve her of the income that was her real return.Define "cause". An undefined word is a lawsuit (and a severance claim).
- Distributions for the passive investorDistribuciones para el inversionista pasivo: Dividend preference through a separate class, mandatory distribution formulas, limits on salaries that soak up profit. Protect the clause with a unanimity requirement to amend.Courts may balk at provisions that strip the board of discretion; route the protection through share classes and charter provisions.
- Who sits on the board and howQuién se sienta en el consejo y cómo: Fix the number of directors, require unanimity to change it, and pick a mechanism: a class of stock per owner, cumulative voting, or a pooling agreement to vote for each other. (TBOC §§ 6.252, 21.360)
- Voting and control devicesMecanismos de voto y control: Pooling agreements for shareholder votes, irrevocable proxies coupled with an interest, voting trusts when a lender or an outsider must control seats for a time. (TBOC §§ 6.251, 21.367–21.368)
- Officer positionsCargos directivos: The board normally appoints and removes officers at will; an agreement among all owners can promise a position, but a fired officer may be left with damages rather than the job. Weigh the risk of dead wood before promising lifetime jobs.
- Transfer restrictionsRestricciones a la transmisión: Consent requirements (risky if absolute), right of first refusal (match a real offer), first option (seller names terms first), and a legend on the certificate so buyers are bound. (TBOC § 21.213)
- Buy-sell triggersDetonantes de compraventa forzosa: Death, disability, divorce in a community-property state, retirement, termination of employment, bankruptcy, deadlock. Each trigger gets a price method and a funding source.
- Price and fundingPrecio y financiamiento: Book value (simple, often low), capitalization of earnings, independent appraisal, or the offer price; funded by key person insurance, installment notes or sinking funds. Courts honor the agreed formula absent fraud.
- The unanimity list and the deadlock breakerLa lista de unanimidad y el desempate: Name the fundamental decisions that need everyone (sell the business, new line of business, admit owners, change dividends or jobs) and supply a tiebreaker for 50/50 splits: casting vote, shotgun clause, mediation.Too much unanimity hands the minority a veto over everything; too little leaves it with nothing but an oppression claim, which Texas no longer recognizes at common law (Ritchie v. Rupe).
The pattern of the chapter 3 scenario
Several owners, some working and one investing, pick an entity and then nothing is written. Ten years later one is fired, one divorces in a community-property state, the company makes money but pays no dividends, and one dies leaving the interest to an heir nobody wants. Each event is a row in the checklist above; the exam answer walks the rows, says what the default rule does to each owner, and drafts the clause that would have prevented it.
A way to remember it
Jobs, money, seats, votes, exits. If the agreement covers those five, deadlock and oppression rarely reach a courtroom.