Exhibit 99.1
VOTING AGREEMENT
VOTING AGREEMENT, dated as May 6, 1996 (this "Agreement"), by
MILNER ASSOCIATES, a Utah Limited Partnership, (the "Stockholder") with
TIGER REAL ESTATE ACQUISITION CORP., a Minnesota corporation
("Purchaser").
WHEREAS, Purchaser and its parent, TIGER REAL ESTATE FUND, L.P., a
Delaware limited partnership ("Parent"), propose to enter into an
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), with KAHLER REALTY CORPORATION, a Minnesota corporation (the
"Company"), which provides, among other things, that the Company will
merge with Purchaser pursuant to the merger contemplated by the Merger
Agreement (the "Merger");
WHEREAS, as of the date hereof, the Stockholder owns 492,407 shares
of common stock, par value $.10 per share, of the Company ("Company
Common Stock"); and
WHEREAS, as a condition to the willingness of Parent and Purchaser
to enter into the Merger Agreement, Purchaser has required that the
Stockholder agree, and in order to induce Parent and Purchaser to enter
into the Merger Agreement, the Stockholder has agreed, to enter into this
Agreement with respect to all the shares of Company Common Stock now
owned and which may hereafter be acquired by the Stockholder (the
"Shares").
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
PROXY OF THE STOCKHOLDER
SECTION 1.01 Voting Agreement. The Stockholder 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 shareholders of the Company, the Stockholder shall vote the
Shares: (a) in favor of the Merger, the Merger Agreement (subject to the
proviso below, as amended from time to time) and any of the transactions
contemplated by the Merger Agreement; and (b) against any proposal for
any recapitalization, merger, sale of assets or other business
combination between the Company and any person or entity (other than the
Merger) or any other action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or which could result
in any of the conditions to the Company's obligations under the Merger
Agreement not being fulfilled, provided that the Stockholder shall have
no obligations hereunder in the event that the Merger Agreement is
amended to (i) change the form of the Merger Consideration, (ii) reduce
the Merger Consideration below $17.00 per share or (iii) change the
treatment of Options. The Stockholder acknowledges receipt and review of
a copy of the Merger Agreement.
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SECTION 1.02 Irrevocable Proxy. In the event the Stockholder
shall fail to comply with the provisions of Section 1.01 hereof as
determined by Purchaser in its sole discretion, the Stockholder agrees
that such failure shall result, without any further action by the
Stockholder, in the irrevocable appointment of Purchaser, until
termination of the Merger Agreement, as his attorney and proxy pursuant
to the provisions of Section 302A.449 of the Minnesota Business
Corporation Act, with full power of substitution, to vote, and otherwise
act (by written consent or otherwise) with respect to the Shares which
Stockholder is entitled to vote at any meeting of stockholders of the
Company (whether annual or special and whether or not an adjourned or
postponed meeting) or consent in lieu of any such meeting or otherwise,
on the matters and in the manner specified in Section 1.01 hereof. THIS
PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST.
The Stockholder hereby revokes all other proxies and powers of attorney
with respect to the Shares which he may have heretofore appointed or
granted, and no subsequent proxy or power of attorney shall be given or
written consent executed (and if given or executed, shall not be
effective) by the Stockholder with respect thereto. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity
of the Stockholder and any obligation of the Stockholder under this
Agreement shall be binding upon the heirs, personal representatives,
successors and assigns of the Stockholder.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Purchaser as
follows:
SECTION 2.01 Authority Relative to This Agreement. The
Stockholder has all necessary power and authority to execute and deliver
this Agreement, to perform his obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Stockholder and constitutes a legal, valid
and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms.
SECTION 2.02 No Conflict. (a) The execution and delivery of
this Agreement by the Stockholder do not, and the performance of this
Agreement by the Stockholder shall not, (i), to the Stockholder's
knowledge, conflict with or violate any Governmental Regulations (as such
term is defined in the Merger Agreement) applicable to the Stockholder 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 of 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,
partnership agreement, note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise, or other instrument or
obligation to which the Stockholder is a party or by which the
Stockholder or the Shares are bound or affected.
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(b) To the Stockholder's knowledge, the execution and delivery of
this Agreement by the Stockholder do not, and the performance of this
Agreement by the Stockholder shall not, require any consent, approval
authorization or permit of, or filing with or notification to, any
Governmental Entity (as such term is defined in the Merger Agreement)
except for applicable requirements, if any, of the Securities Exchange
Act of 1934, as amended, or the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
SECTION 2.03 Title to the Shares. As of the date hereof, the
Stockholder is the record and beneficial owner of 492,407 shares of
Company Common Stock, which are all the securities of the Company owned,
either of record or beneficially, by the Stockholder. Except as set
forth in a Schedule to the Merger Agreement, the Stockholder owns all the
Shares free and clear of all Liens, options, rights of first refusal,
agreements, limitations on the Stockholder's voting rights and other
encumbrances or any nature whatsoever. Except as provided in this
Agreement, the Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares or
Other Securities.
ARTICLE III
COVENANTS OF THE STOCKHOLDER
SECTION 3.01 No Disposition or Encumbrance of Shares. The
Stockholder hereby covenants and agrees that, except as contemplated by
this Agreement, the Stockholder shall not, and shall not offer or agree
to, sell, transfer, tender, assign, hypothecate or otherwise dispose of,
grant a proxy or power of attorney with respect to, create or permit to
exist any Lien (as defined in the Merger Agreement), option, right of
first refusal, agreement, limitation on the Stockholder's voting rights
or other encumbrance of any nature whatsoever with respect to, the Shares
or, directly or indirectly, initiate, solicit or encourage any person to
take actions which could reasonably be expected to lead to the occurrence
of any of the foregoing.
SECTION 3.02 No Solicitation of Transactions. The Stockholder
hereby agrees to be bound by and to comply with obligations of the
Company set forth in Section 4.5 of the Merger Agreement as if such
obligations were set forth in their entirety in this Section 3.02 as
obligations of the Stockholder.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01 Termination. This Agreement (except for Article
IV of this Agreement) shall terminate upon the termination of the Merger
Agreement in accordance with its terms. Article IV of this Agreement
shall survive termination of this Agreement.
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SECTION 4.02 Further Assurances. The Stockholder and
Purchaser will execute and deliver all such further documents and
instruments and take all such further action as may be necessary in order
to consummate the transactions contemplated hereby.
SECTION 4.03 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 4.04 Entire Agreement. This Agreement constitutes the
entire agreement between Purchaser and the Stockholder with respect to
the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, between Purchaser and the
Stockholder with respect to the subject matter hereof.
SECTION 4.05 Amendment. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
SECTION 4.06 Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any
rule of law, or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so long
as the economic or legal substance of this Agreement is not affected in
any manner materially adverse to any party. Upon such determination that
any term or other provision is invalid, illegal or incapable or being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely
as possible in a mutually acceptable manner in order that the terms of
this Agreement remain as originally contemplated to the fullest extent
possible.
SECTION 4.07 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York
applicable to contracts executed in and to be performed in that State,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof. All actions and proceedings
arising out of or relating to this Agreement shall be heard and
determined in any New York state or federal court.
SECTION 4.08 Definitions. Capitalized terms not otherwise
defined herein are used as defined in the Merger Agreement.
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IN WITNESS WHEREOF, the Stockholder has duly executed this
Agreement.
Dated: May 6, 1996
MILNER ASSOCIATES, L.P.
By: Harold W. Milner
Name: Harold W. Milner
Title: General Partner
Agreed and accepted
as of May 6, 1996
TIGER REAL ESTATE FUND, L.P.
By: Tiger Real Estate Partners
Management, L.L.C., its general
partner
By: Tiger Real Estate Partners,
L.L.C., its managing member
By: Paul Kazilionis
Name: Paul Kazilionis
Title: Managing Principal
TIGER REAL ESTATE ACQUISITION CORP.
By: Paul Kazilionis
Name: Paul Kazilionis
Title: Managing Principal
By: Patrick Fox
Name: Patrick Fox
Title: Secretary
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