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COMPANY SHAREHOLDER VOTING AGREEMENT
THIS COMPANY SHAREHOLDER VOTING AGREEMENT (this "Agreement") is
entered
into as of January __, 2005, by and between National
Incorporated, a California
corporation ("Parent"), Minor League Merger Corporation, a
Delaware corporation
and a wholly owned subsidiary of Parent ("Merger Sub 2") and the
undersigned
shareholder (the "Shareholder") of American Corporation, a
Minnesota corporation
(the "Company").
W I T N E S S E T H:
WHEREAS, Parent, Major League Merger Corporation, a
Minnesota
corporation and a wholly owned subsidiary of Parent ("Merger Sub
1"), Merger Sub
2 and the Company are entering into an Agreement and Plan of
Merger and
Reorganization (the "Reorganization Agreement") concurrently
herewith pursuant
to which (i) Parent will merge with and into Merger Sub 2 (the
"Migratory
Merger"), whereupon (A) Merger Sub 2 will succeed to all of the
rights and
liabilities of Parent, and (B) all outstanding shares of capital
stock of Parent
will be converted into the right to receive an equivalent number
of shares of
capital stock of Merger Sub 2, and (ii) Merger Sub 1 will merge
with and into
the Company (the "Merger"), whereupon (A) the Company will
become a wholly owned
subsidiary of Merger Sub 2, and (B) all outstanding shares of
capital stock of
the Company (the "Company Capital Stock") will be converted into
the right to
receive a number of shares of common stock of Merger Sub 2 (the
"Parent Common
Stock") as set forth therein.
WHEREAS, for all purposes of and under this Agreement, (i)
capitalized
terms used but not otherwise defined herein shall have the
respective meanings
ascribed thereto in the Reorganization Agreement, and (ii)
references to Parent
or Parent Common Stock shall be deemed to refer to Parent or
Parent Common
Stock, as the case may be, prior to the effective time of the
Migratory Merger
and shall be deemed to refer to Merger Sub 2 and Merger Sub 2
Common Stock, as
the case may be, from and after the effective time of the
Migratory Merger.
WHEREAS, the Shareholder is the beneficial owner (as defined in
Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange
Act")) of the shares of capital stock of the Company, and
options to acquire
shares of capital stock of the Company, each as set forth on the
signature page
of this Agreement.
WHEREAS, in consideration of the execution of the Merger
Agreement by
Parent, the Shareholder (solely in his capacity as such) is
hereby agreeing to
vote the Shares (as defined below), so as to facilitate the
consummation of the
Merger.
NOW, THEREFORE, in consideration of the premises and the
covenants and
agreements set forth in the Merger Agreement and in this
Agreement, and other
good and valuable consideration, the receipt and sufficiency of
which are hereby
acknowledged and accepted, the parties hereto hereby agree as
follows:
<PAGE>
1. Certain Definitions. Capitalized terms used but not
otherwise
defined herein shall have the respective meanings ascribed to
them in the Merger
Agreement. For purposes of this Agreement, the following terms
shall have the
following respective meanings:
(a) "Expiration Date" shall mean the earlier to occur of (i)
such date and time as the Merger Agreement shall have been
validly terminated in
accordance with its terms and conditions, or (ii) such date and
time as the
Merger shall become effective in accordance with its terms and
conditions.
(b) "Person" shall mean any individual, any corporation,
limited liability company, general or limited partnership,
business trust,
unincorporated association or other business organization or
entity, or any
governmental body or authority.
(c) "Shares" shall mean (i) all voting securities of the
Company beneficially owned by the Shareholder as of the date of
this Agreement
and (ii) all voting securities of the Company which the
Shareholder purchases or
acquires beneficial ownership of after the date of this
Agreement and prior to
the Expiration Date, including, without limitation, any shares
issued or
issuable upon the conversion, exercise or exchange, as the case
may be, of any
shares held by the Shareholder which are convertible into, or
exercisable or
exchangeable for, voting securities of the Company.
(d) "Transfer" shall mean a direct or indirect: (i) sale,
pledge, encumbrance, grant of an option with respect to,
transfer or disposal of
a security or any interest in such security, or (ii) entrance
into an agreement
or commitment providing for the sale of, pledge of, encumbrance
of, grant of an
option with respect to, transfer of or disposition of such
security or any
interest therein.
2. Transfer of Shares.
(a) Transferee of Shares to be Bound by this Agreement. The
Shareholder hereby agrees that, at all times during the period
commencing with
the execution and delivery of this Agreement until the
Expiration Date, the
Shareholder shall not cause or permit any Transfer of any of the
Shares (or any
securities convertible into or exercisable or exchangeable for
Shares), or any
interest in the foregoing, to be effected unless each Person to
which any of
such Shares (or any securities convertible into or exercisable
or exchangeable
for Shares), or any interest in any of the foregoing, is or may
be Transferred
shall have (i) executed a counterpart of this Agreement and an
irrevocable proxy
in the form attached hereto as Exhibit A (the "Proxy"), and (ii)
agreed in
writing to hold such Shares (or any securities convertible into
or exercisable
or exchangeable for Shares), or such interest in the foregoing,
subject to the
terms and conditions of this Agreement.
(b) Transfer of Voting Rights. The Shareholder hereby agrees
that, at all times during the period commencing with the
execution and delivery
of this Agreement until the Expiration Date, the Shareholder
shall not deposit
(or permit the deposit of) any Shares (or any securities
convertible into or
exercisable or exchangeable for Shares), or any interest in the
foregoing, in a
voting trust or grant any proxy, or enter into any voting
agreement or similar
agreement or arrangement in contravention of the obligations of
the Shareholder
under this Agreement with respect to any of the Shares (or any
securities
convertible into or exercisable or exchangeable for Shares), or
any interest in
the foregoing.
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<PAGE>
3. Agreement to Vote Shares. The Shareholder hereby agrees that,
at all
times during the period commencing with the execution and
delivery of this
Agreement until the Expiration Date, at every meeting of
shareholders of the
Company called with respect to any of the following, and at
every adjournment or
postponement thereof, and on every action or approval by written
consent of
shareholders of the Company with respect to any of the
following, the
Shareholder shall vote, to the extent not voted by the person(s)
appointed under
the Proxy (as defined in Section 4 hereof), the Shares:
(a) in favor of the adoption and approval of the Merger
Agreement and the approval of the Merger, and in favor of each
of the other
actions contemplated by the Merger Agreement and any action
required in
furtherance thereof;
(b) against approval of any proposal made in opposition to,
or
in competition with, consummation of the Merger and the other
transactions
contemplated by the Merger Agreement;
(c) against any of the following actions (other than those
actions that relate to the Merger and the other transactions
contemplated by the
Merger Agreement): (i) any merger, consolidation, business
combination, sale of
assets, reorganization or recapitalization of the Company or any
subsidiary of
the Company with any person, (ii) any sale, lease or transfer of
any significant
part of the assets of the Company or any subsidiary of the
Company, (iii) any
reorganization, recapitalization, dissolution, liquidation or
winding up of the
Company or any subsidiary of the Company, (iv) any change in the
capitalization
of the Company or any subsidiary of the Company, or the
corporate structure of
the Company or any subsidiary of the Company, or (v) any other
action that is
intended, or could reasonably be expected to, impede, interfere
with, delay,
postpone, discourage or adversely affect the Merger or any of
the other
transactions contemplated by the Merger Agreement; and
(d) in favor of waiving any notice that may have been or may
be required relating to any reorganization of the Company or any
subsidiary of
the Company, any reclassification or recapitalization of the
capital stock of
the Company or any subsidiary of the Company, or any sale of
assets, change of
control, or acquisition of the Company or any subsidiary of the
Company by any
other person, or any consolidation or merger of the Company or
any subsidiary of
the Company with or into any other person.
Prior to the Expiration Date, the Shareholder shall not enter
into any agreement
or understanding with any person to vote or give instructions in
any manner
inconsistent with the terms of this Section 3.
4. Irrevocable Proxy. The Shareholder hereby agrees to deliver
to
Parent, concurrently with the execution and delivery of this
Agreement, the
Proxy in the form attached hereto as Exhibit A, which shall be
irrevocable to
the fullest extent permitted by applicable law, with respect to
the Shares.
5. Representations, Warranties and Covenants of Shareholder.
The
Shareholder hereby represents, warrants and covenants to Parent
as follows:
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<PAGE>
(a) The Shareholder is the beneficial or record owner of, or
exercises voting power over, the Shares. The Shares constitute
the Shareholder's
entire interest in the outstanding shares of voting securities
of the Company
and the Shareholder does not hold any other outstanding shares
of capital stock
of the Company. No person not a signatory to this Agreement has
a beneficial
interest in or a right to acquire or vote any of the Shares
(other than, (i) if
the Shareholder is a partnership, the rights and interest of
persons and
entities that own partnership interests in the Shareholder under
the partnership
agreement governing the Shareholder and applicable partnership
law or (ii) if
the Shareholder is a married individual and resides in a State
with community
property laws, the community property interest of his or her
spouse to the
extent applicable under such community property laws). The
Shares are and will
be at all times up until the Expiration Date free and clear of
any security
interests, liens, claims, pledges, options, rights of first
refusal, co-sale
rights, agreements, limitations on the Shareholder's voting
rights, charges and
other encumbrances of any nature ("Encumbrances") that would
adversely affect
the Merger or the exercise or fulfillment of the rights and
obligations of the
Company under the Merger Agreement or of the parties to this
Agreement. The
Shareholder's principal residence or place of business is set
forth on the
signature page hereto.
(b) The Shareholder has all requisite power, capacity and
authority to enter into this Agreement and to perform its
obligations under this
Agreement. The execution and delivery of this Agreement by the
Shareholder and
the consummation by the Shareholder of the transactions
contemplated hereby have
been duly authorized by all necessary action, if any, on the
part of the
Shareholder. This Agreement has been duly executed and delivered
by the
Shareholder and constitutes a valid and binding obligation of
the Shareholder,
enforceable against the Shareholder in accordance with its
terms, subject only
to the effect, if any, of (a) applicable bankruptcy and other
similar laws
affecting the rights of creditors generally and (b) rules of law
governing
specific performance, injunctive relief and other equitable
remedies.
(c) The execution and delivery of this Agreement by the
Shareholder does not, and the Shareholder's performance of the
obligations under
this Agreement will not: (a) conflict with, or result in any
violation of any
order, decree or judgment applicable to the Shareholder or by
which the
Shareholder or any of the Shareholder's properties or the Shares
are bound; or
(b) result in any breach of or constitute a default (with notice
or lapse of
time, or both) under, or give to others any rights of
termination, amendment,
acceleration or cancellation of, or result in the creation of
any Encumbrance
on, any of the Shares pursuant to any contract to which
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