Exhibit 99.2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 6, 1996 (this "Agreement"), by MAYO
FOUNDATION (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 1,113,234 shares
of common stock, par value $.10 per share, of the Company ("Company Common
Stock") representing 25.6% of the outstanding shares of the 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 370,000 shares of Company Common Stock now owned
by the Stockholder (the "Subject Shares"), representing 8.5% of the
outstanding shares of the Company Common Stock.
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
shareholders of the Company, however called, and in any action by consent
of the shareholders of the Company, the Stockholder shall vote the Subject
Shares: (a) in favor of the Merger, the Merger Agreement (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 the Merger
Agreement is amended to (i) change the form of the Merger Consideration or
(ii) reduce the Merger Consideration below $17.00 per share. 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 its 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 Subject 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 Subject Shares
which it 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 termination of existence of the Stockholder and any obligation
of the Stockholder under this Agreement shall be binding upon the
successors and assigns of the Stockholder
SECTION 1.03. Limitation to Subject Shares. Nothing herein shall
be deemed to create, whether by express provision or impliedly, any
agreement, arrangement, relationship or understanding, with respect to the
voting, the power to direct the voting, the disposition, or the power to
direct the disposition of any shares of Company Common Stock owned by the
Stockholder other than the Subject Shares.
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 its 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) conflict with or violate any
Governmental Regulations (as such term is defined in the Merger Agreement)
applicable to the Stockholder or by which the Subject 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
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any of the Subject Shares pursuant to, any 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 Subject Shares are bound or affected.
(b) 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 1,113,234 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 such shares of
Company Common Stock 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 with respect to the Subject Shares, the Stockholder has not
appointed or granted any proxy, which appointment or grant is still
effective, with respect to any shares of Company Common Stock owned by it.
ARTICLE III
COVENANTS OF THE STOCKHOLDER
SECTION 3.01 No Disposition or Encumbrance of Shares. (a) 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 Subject 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.
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.
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.
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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.
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IN WITNESS WHEREOF, the Stockholder has duly executed this Agreement.
Dated: May 6, 1996
MAYO FOUNDATION
By: Dr. Robert Waller
Name: Dr. Robert Waller
Title: President
Agreed and accepted
as of May 6, 1996
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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