Exhibit 3
ACQUIROR STOCKHOLDER VOTING AGREEMENT
(XXXXXX ELECTRONICS CORPORATION)
THIS VOTING AGREEMENT (this "Voting Agreement") is entered
into as of May 14, 2001 by and between Rare Medium Group, Inc., a Delaware
corporation (the "Company"), and the undersigned stockholder (the
"Stockholder") of Motient Corporation, a Delaware corporation ("Acquiror").
WHEREAS, pursuant to that certain Agreement and Plan of
Merger, dated as of May 14, 2001 (the "Merger Agreement"), by and among
Acquiror, the Company and MR Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of Acquiror, among other things, Merger Sub will be
merged with and into the Company (the "Merger") and, as a result of the
Merger, the separate corporate existence of Merger Sub shall cease and the
Company shall continue as the surviving corporation of the Merger; and
WHEREAS, in order to induce Company to enter into the Merger
Agreement, the Stockholder has agreed to execute and deliver to Company
this Voting Agreement;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used and not defined
herein shall have the meanings specified in the Merger Agreement. All
references herein to Stockholder shall be deemed to include the Stockholder
and its wholly-owned subsidiaries.
2. Voting; Grant of Proxy and Further Assurances. The
Stockholder hereby irrevocably agrees, during the Term (as defined below)
to cast all votes attributable to that number of shares of Acquiror Common
Stock as set forth on Annex A hereto and any other shares which are
beneficially owned or hereafter acquired by the Stockholder and over which
the Stockholder has direct or indirect voting power (the "Shares") at any
annual or special meeting of stockholders of Acquiror, including any
adjournments or postponements thereof, or written consent of stockholders
in lieu thereof (a "Meeting"), in favor of the approval and adoption of the
Restated Charter and the Required Acquiror Stockholder Consent and against
any Competing Transaction for Acquiror. As soon as practicable following
the execution of this Voting Agreement, (a) the Stockholder shall deliver
to the Company a proxy in the form attached to this Voting Agreement as
Exhibit A (a "Proxy"), which shall be irrevocable to the fullest extent
permitted by law and to the extent provided therein (but shall be subject
to termination as set forth herein), with respect to the Shares referred to
therein, and (b) the Stockholder shall cause to be delivered to the Company
an additional Proxy executed on behalf of the record owner of any
outstanding shares of Acquiror Common Stock that are owned beneficially,
but not of record, by such Stockholder, which proxy shall be irrevocable to
the fullest extent permitted by law and to the extent provided therein (but
shall be subject to termination as set forth herein), with respect to the
Shares referred to therein. The Stockholder agrees not to enter into any
agreement or understanding the effect of which would be inconsistent with
or violative of the provisions and agreements contained in this Voting
Agreement, including in this Section 2.
3. Restrictions on Transfer; Non-Interference. The
Stockholder hereby agrees during the Term not to (a) directly or indirectly
sell, transfer, pledge, encumber (other than by operation of law), assign
or otherwise dispose of (collectively, "Transfer"), or enter into any
contract, option or other arrangement or understanding with respect to the
Transfer of any of the Shares, except to the extent (i) such Transfer is
approved in advance in writing by the Company or (ii) the transferee of the
Shares, prior to and as a condition to such Transfer, executes and delivers
to the Company an agreement in substantially the form of this Voting
Agreement; (b) grant any proxies, deposit any Shares into a voting trust or
enter into a voting agreement with respect to any Shares; or (c) take any
action which would have the effect of preventing or inhibiting the
Stockholder from performing the Stockholder's obligations under this Voting
Agreement.
4. Non-Solicitation. The Stockholder hereby agrees that
during the Term, the Stockholder shall not directly or indirectly: (a)
initiate, solicit or encourage (including by way of furnishing information
or assistance), or take any other action to facilitate, any inquiries or
the making of any proposal that constitutes, or may reasonably be expected
to lead to, any Competing Transaction for Acquiror; or (b) enter into or
participate in any discussions or negotiations with any Person regarding a
Competing Transaction for Acquiror, or furnish to any Person any
information regarding a Competing Transaction for Acquiror, or take any
other action to facilitate or cooperate with the making of any inquiry or
proposal regarding a Competing Transaction for Acquiror; or (c) agree to
approve or endorse any Competing Transaction for Acquiror.
5. Authorization; Binding Obligation. The Stockholder hereby
represents and warrants to the Acquiror that the Stockholder has taken all
corporate action necessary to enter into this Voting Agreement and to
consummate the transactions contemplated hereby, (b) the Stockholder owns
of record and beneficially good and valid title to all of the Shares, free
and clear of any and all Encumbrances, and (c) this Voting Agreement has
been duly executed and delivered by the Stockholder and constitutes a
legal, valid and binding obligation of the Stockholder, enforceable in
accordance with its terms, except as such enforceability may be subject to
the effects of any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar Laws affecting creditors'
rights generally and subject to the effects of general equitable principles
(whether considered in a proceeding in equity or at law).
6. No Conflict. The Stockholder hereby represents and
warrants to the Acquiror that the execution and delivery of this Voting
Agreement by the Stockholder does not, and the performance of the
Stockholder's obligations under this Voting Agreement will not, (a)
conflict with or violate the articles of incorporation or other similar
organizational documents of the Stockholder, (b) conflict with or violate
any law, statute, ordinance, rule, regulation, order, judgment or decree
applicable to the Stockholder or by which the Stockholder or any of the
Stockholder's properties is bound or affected, which conflict or violation
would adversely affect Stockholder's ability to perform its obligations
under this Voting Agreement; or (c) result in any Encumbrance on the
Shares, other than the requirements of this Voting Agreement.
7. Understanding of this Voting Agreement. The Stockholder
has carefully read this Voting Agreement and has discussed its
requirements, to the extent the Stockholder believes necessary, with
counsel to the Stockholder. The Stockholder further understands that the
parties to the Merger Agreement will be proceeding in reliance upon this
Voting Agreement.
8. Headings. The headings of the Sections of this Voting
Agreement are inserted for convenience of reference only and do not form a
part or affect the meaning hereof.
9. Counterparts. This Voting Agreement may be executed in
counterparts, each of which when so executed and delivered shall be an
original, but all of such counterparts shall together constitute one and
the same instrument.
10. Entire Agreement; Assignment. This Voting Agreement (a)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties hereto with
respect to the subject matter hereof and (b) shall not be assigned by
operation of law or otherwise.
11. Governing Law. This Voting Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware
without regard to any principles of Delaware conflicts of law.
12. Specific Performance. The parties hereto agree that if
any of the provisions of this Voting Agreement are not performed in
accordance with their specific terms or are otherwise breached, irreparable
damage would occur, no adequate remedy at law would exist and damages would
be difficult to determine, and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy
at law or equity.
13. Parties in Interest. This Voting Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and
nothing in this Voting Agreement, express or implied, is intended to or
shall confer upon any other person or persons any rights, benefits or
remedies of any nature whatsoever under or by reason of this Voting
Agreement.
14. Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Voting Agreement or the
transactions contemplated hereby shall be brought in the United States
District Court for the District of Delaware or any Delaware State court
sitting in Wilmington, Delaware having subject matter jurisdiction, and
each of the parties hereby consents to the exclusive jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such
suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding which is brought in any
such court has been brought in an inconvenient forum. Process in any such
suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court.
15. Amendment; Waivers. This Voting Agreement shall not be
amended, altered or modified except by an instrument in writing duly
executed by each of the parties hereto. No delay or failure on the part of
either party hereto in exercising any right, power or privilege under this
Voting Agreement shall impair any such right, power or privilege or be
construed as a waiver of any default or any acquiescence thereto. No single
or partial exercise of any such right, power or privilege shall preclude
the further exercise of such right, power or privilege, or the exercise of
any other right, power or privilege. No waiver shall be valid against any
party hereto, unless made in writing and signed by the party against whom
enforcement of such waiver is sought, and then only to the extent expressly
specified therein.
16. Additional Actions and Documents. Each of the parties
hereto hereby agrees to take or cause to be taken such further actions, to
execute, deliver and file or cause to be executed, delivered and filed such
further documents and instruments, and to obtain such consents as may be
necessary or as may be reasonably requested in order to fully effectuate
the purposes, terms and conditions of this Voting Agreement.
17. Stockholder Capacity. The Stockholder signs solely in
its capacity as the beneficial owner of the Shares, and nothing herein
shall limit or affect any actions taken or omitted to be taken by any
representative, designee or affiliate of the Stockholder in his or her
capacity as a director of Acquiror including, without limitation, those
actions permitted by Section 5.05(e) of the Merger Agreement.
18. Termination. This Voting Agreement and any Proxy
delivered hereunder shall terminate and shall have no further force or
effect as of the earlier to occur of such time as the (a) Merger shall
become effective in accordance with the terms set forth in the Merger
Agreement, (b) the Merger Agreement shall have been modified or amended in
violation of Section 8.04 thereof or any extension or waiver shall have
been granted in violation of Section 8.05 thereof, or (c) Merger Agreement
shall have been terminated in accordance with the terms thereof (such time
being the "Termination Time"). For purposes of this Voting Agreement,
"Term" shall mean the period from the date hereof until the Termination
Time.
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IN WITNESS WHEREOF, the parties hereto have duly executed
and delivered this Voting Agreement, or have caused this Voting Agreement
to be duly executed and delivered in their names and on their behalf, as of
the date first written above.
RARE MEDIUM GROUP, INC.
By:
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Name:
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Title:
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XXXXXX ELECTRONICS CORPORATION
By:
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Name:
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Title:
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ANNEX A
EXHIBIT A
Form of Irrevocable Proxy
The undersigned Stockholder of Motient Corporation, a Delaware
corporation ("Acquiror"), hereby irrevocably (to the fullest extent
permitted by law) appoints and constitutes Rare Medium Group, Inc., a
Delaware corporation (the "Company"), and Xxxxx Xxxxxx, President and Chief
Executive Officer of the Company, and Xxxxxx Xxxxx, Senior Vice President
and General Counsel of the Company in their respective capacities as
officers of the Company, and any individual who shall hereafter succeed to
any such office of the Company and each of them individually, and any
individual designated in writing by any of them, the attorney and proxy of
the undersigned, with full power of substitution and resubstitution, to the
full extent of the undersigned's voting rights with respect to the Shares
(as such term is defined in the Acquiror Voting Agreement dated as of the
date hereof, between Acquiror and the undersigned (the "Acquror Voting
Agreement")) on the matters described below (and on no other matter), until
the earlier to occur of such time as the (a) Merger (as defined in the
Merger Agreement and referred to below) shall become effective in
accordance with the terms and subject to the conditions set forth in the
Merger Agreement (as defined in the Merger Agreement and referred to
below), (b) the Merger Agreement shall have been modified or amended in
violation of Section 8.04 thereof or any extension or waiver shall have
been granted in violation of Section 8.05 thereof, or (c) the Merger
Agreement shall have been terminated in accordance with the terms thereof
(such time being the "Termination Time"). Upon the execution hereof, all
prior proxies given by the undersigned with respect to the Shares are
hereby revoked, and the undersigned agrees that no subsequent proxy will be
given with respect to the voting of any of the Shares except to the extent
that such proxies do not prevent the voting of this proxy in favor of the
matters described below.
This proxy is irrevocable (subject to the termination of the proxy
as set forth in the Acquiror Voting Agreement), is coupled with an
interest, is granted in connection with the execution and delivery of the
Acquiror Voting Agreement and is granted in consideration of the Company
entering into the Agreement and Plan of Merger, dated as of the date
hereof, between Acquiror and the Company (the "Merger Agreement").
During the period from the date hereof until the Termination Time,
the proxy named above (and its successors) will be empowered, and may
exercise this proxy, to vote the Shares at any meeting of the stockholders
of Acquiror, however called, or in connection with any solicitation of
written consents from stockholders of Acquiror, called or solicited, as the
case may be, for the purpose of voting on the Merger Agreement and the
transactions expressly contemplated thereby in favor of the approval and
adoption of the Restated Charter and the Revised Acquiror Stockholders
Consent and against any Competing Transaction for Acquiror (as each such
term is defined in the Merger Agreement). The undersigned may vote the
Shares on all other matters.
This proxy shall be binding upon the representatives, successors
and permitted assigns of the undersigned.
If any provision of this proxy or any part of any such provision
is held under any circumstances to be invalid or unenforceable in any
jurisdiction, then (a) such provision or part thereof shall, with respect
to such circumstances and in such jurisdiction, be deemed amended to
conform to applicable laws so as to be valid and enforceable to the fullest
possible extent, (b) the invalidity or unenforceability of such provision
or part thereof under such circumstances and in such jurisdiction shall not
affect the validity or enforceability of such provision or part thereof
under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or
the validity or enforceability of any other provision of this proxy. Each
provision of this proxy is separable from every other provision of this
proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
This proxy shall terminate and shall have no further force and
effect as of the Termination Time.
Date: May 14, 2001
[STOCKHOLDER]
By:
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Name:
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Title:
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Number of Shares and class of
Shares owned of record as of the
date of this proxy:
___________ shares of Common Stock
