What governance agreements usually address
Shareholders' and voting agreements commonly set board composition, designate which holders can appoint directors, and list reserved matters that need investor or supermajority approval. They often include transfer restrictions, rights of first refusal, and drag-along and tag-along provisions that come into play when someone wants to sell. Deadlock mechanisms, such as escalation, mediation, or a buy-sell trigger, matter most in companies owned by two equal holders. New York allows shareholders of a non-public corporation to limit the board's discretion in ways that would otherwise be invalid, but such provisions generally have to appear in the certificate of incorporation with unanimous shareholder approval. Delaware amended its corporate statute in 2024 after a court decision cast doubt on some stockholder agreements granting investors approval rights.
Documents to review together
Gather the charter, bylaws, existing shareholder or voting agreements, investor rights agreements, and any side letters, because inconsistent provisions across them are a common source of disputes. The cap table shows whose consent is actually needed to amend each document. Board and committee charters reveal how authority has been delegated in practice. Employment and founder agreements may tie board seats or vesting to continued service. For a public company negotiating with an activist, prior engagement, disclosure filings, and the proposed nominees' backgrounds should be on hand.
What we decide with you first
We begin by identifying the governance outcome each party wants and whether it belongs in the charter, the bylaws, or a contract, since each has different enforcement and amendment rules. We check whether the proposed provisions are valid under the law of the state of incorporation and consistent with directors' duties. Deadlock and exit provisions get special attention, because they are the ones tested when relationships break down. In activist settlements, we review standstill terms, nominee arrangements, and disclosure obligations. The result is a set of documents that work together rather than in tension.
