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EXHIBIT 10.13
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VOTING AGREEMENT
VOTING AGREEMENT, dated as of ___________1998 (this "Agreement"),
between MICHAEL A. LEVEN ("Leven") and NEAL K. ARONSON ("Aronson").
WHEREAS, as of the date hereof, Aronson owns 589,865 shares of
Class A Common Stock, par value $0.01 per share (the "Class A Common Stock"),
and 1,509,453 shares of Class B Common Stock, par value $0.01 per share (the
"Class B Common Stock") of USFS Hawthorn, Inc. (the "Company"). The term
"Company" includes any entity which survives a merger or consolidation involving
USFS Hawthorn, Inc.
WHEREAS, in connection with the initial public offering of U.S.
Franchise Systems, Inc., a Delaware corporation which has merged with and into
the Company (the "Merger"), and at the request of the Underwriters of such
offering, Leven and Aronson entered into a similar Voting Agreement which
subsequent to the Merger is no longer effective.
WHEREAS, Aronson has agreed to enter into this Agreement with
respect to 111,347 shares of Class A Common Stock and 311,007 shares of Class B
Common Stock now owned by Aronson (the "Shares"). The term "Shares" includes any
securities into which such shares of Class A Common Stock or Class B Common
Stock are converted into pursuant to a merger or consolidation of the Company
with or into any other entity.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING AND PROXY
Section 1.1 Voting Agreement. Aronson hereby agrees that during the
time this Agreement is in effect, at any meeting of the stockholders of the
Company, however called, and in any action by consent of the stockholders of the
Company, Aronson shall vote the Shares as directed by Leven, and, to effectuate
such agreement, to grant to Leven a proxy to vote the Shares ("Proxy").
Section 1.2 Proxy. Attached hereto as Exhibit A is a proxy granted
by Aronson to Leven to carry out Section 1.1.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ARONSON AND LEVEN
Aronson hereby represents and warrants to Leven as follows:
Section 2.1 Authority Relative to This Agreement. Aronson has all
necessary power and authority to execute and deliver this Agreement and to
perform his obligations hereunder. This Agreement has been duly executed and
delivered by Aronson and, assuming the due authorization, execution and delivery
by Leven, constitutes a legal, valid and binding obligation of Aronson,
enforceable against Aronson in accordance with its terms except to the extent
enforceability may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting creditors' rights generally or by general principles
governing the availability of equitable remedies.
Section 2.2 No Conflict. (a) The execution and delivery of this
Agreement by Aronson does not, and the performance of this Agreement by Aronson
shall not, (i) conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to Aronson or by which the Shares are bound or
affected or (ii) result in any breach of or constitute a default (or an event
that with notice or lapse or time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a lien or encumbrance on any of the Shares pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which Aronson is a party
or by which Aronson or the Shares are bound or affected.
(b) The execution and delivery of this Agreement by
Aronson does not, and the performance of this Agreement by Aronson shall not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental entity except for applicable requirements, if
any, under the federal securities laws.
Section 2.3 Title to the Shares. As of the date hereof, Aronson is
the record and beneficial owner of the Shares. The Shares are owned free and
clear of all security interests, liens, claims, pledges, options, rights of
first refusal, agreement, limitations on Aronson's voting rights, charges and
other encumbrances of any nature whatsoever, except as contemplated by that
certain Amended and Restated Employee Stock Purchase Agreement, originally dated
as of September 29, 1995, and amended and restated as of October 30, 1996,
between Aronson and the Company. Except with respect to the Proxy, the
Stockholder has not appointed or granted any proxy, which appointment or grant
is still effective, with respect to the Shares.
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ARTICLE III
COVENANTS OF ARONSON
Section 3.1 No Inconsistent Agreement. Aronson hereby agrees that,
except as contemplated by this Agreement, Aronson shall not enter into any
voting agreement or grant a proxy or power of attorney with respect to the
Shares that is inconsistent with this Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Termination. This Agreement shall terminate on the
earlier of (a) October 30, 2001, (b) the transfer of the Shares to a person
that is not an "affiliate" of Aronson (as determined under the Securities
Exchange Act of 1934 and the rules promulgated thereunder), (c) the death of
Mr. Leven or (d) the adjudicated incompetency of Mr. Leven, unless earlier
terminated in writing by the parties hereto.
Section 4.2 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 4.3 Entire Agreement. This Agreement and the Proxy
constitute the entire agreement between Aronson and Leven with respect to the
subject matter hereof and thereof and supersedes all prior agreements and
understandings, both written and oral, between Aronson and Leven with respect to
the subject matter hereof and thereof.
Section 4.4 Amendment. This Agreement may not be amended except by
an instrument in writing signed by the parties hereto.
Section 4.5 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law.
Section 4.6 Assignability. This Agreement may not be assigned by
either party without the prior written consent of the other party.
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IN WITNESS WHEREOF, Leven and Aronson have executed this Agreement
on the date hereof.
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Michael A. Leven
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Neal K. Aronson
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EXHIBIT A
PROXY
The undersigned hereby appoints MICHAEL A. LEVEN or any nominee of
MR. LEVEN, with full power of substitution (the "Proxy Holder"), as proxy for
the undersigned, to vote 111,347 shares of Class A Common Stock, par value $0.01
per share, and 311,007 shares of Class B Common Stock, par value $0.01 per
share, of USFS Hawthorn, Inc., a Delaware corporation (the "Corporation") of the
undersigned or any securities into which such shares of Class A Common Stock or
Class B Common Stock are converted into pursuant to a merger or consolidation of
the Company with or into any other entity (such number of shares to be
automatically reduced by the number of any such shares sold by the undersigned
after the date hereof) (the "Shares"), for and in the name, place and stead of
the undersigned at any annual or special meeting of stockholders of the
Corporation or of any entity which survives a merger or consolidation involving
the Company, and any adjournment(s) thereof in any manner as such Proxy Holder
sees fit, and to execute written consents in lieu of any such meeting, until the
earlier of (a) October 30, 2001, (b) the transfer of the Shares to a person who
is not an "Affiliate" of the undersigned (within the meaning of the Securities
Exchange Act of 1934, as amended) (but only with respect to the number of Shares
so transferred), (c) the death or Mr. Leven, (d) the adjudicated incompetency
of Mr. Leven and (e) the earlier termination hereof by Aronson.
This proxy is being granted in connection with the execution of a
Voting Agreement, dated the date hereof, between the undersigned and Mr. Leven.
Dated: , 1998.
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Neal K. Aronson