-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NUwGaqI6kT5Se70HeRJiZEJfNIhdBYQqt9tko6KacdzCUW/cq+RJ6esfebDRK1rq 0KsYsbdFfrNJ2K3S2LKVgQ== 0000913665-01-500031.txt : 20010627 0000913665-01-500031.hdr.sgml : 20010627 ACCESSION NUMBER: 0000913665-01-500031 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010524 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: RARE MEDIUM GROUP INC CENTRAL INDEX KEY: 0000756502 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING, DATA PROCESSING, ETC. [7370] IRS NUMBER: 232368845 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-36742 FILM NUMBER: 1647363 BUSINESS ADDRESS: STREET 1: 565 FIFTH AVE STREET 2: 29TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2128836940 MAIL ADDRESS: STREET 1: 565 FIFTH AVE STREET 2: 29TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 FORMER COMPANY: FORMER CONFORMED NAME: ICC TECHNOLOGIES INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: INTERNATIONAL COGENERATION CORP DATE OF NAME CHANGE: 19891005 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MOTIENT CORP CENTRAL INDEX KEY: 0000913665 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 930976127 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 10802 PARKRIDGE BLVD CITY: RESTON STATE: VA ZIP: 20191-5416 BUSINESS PHONE: 7037586000 MAIL ADDRESS: STREET 1: 10802 PARKRIDGE BLVD CITY: RESTON STATE: VA ZIP: 20191-5416 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN MOBILE SATELLITE CORP DATE OF NAME CHANGE: 19931019 SC 13D 1 form13d_52401.txt SCHEDULE 13D RARE MEDIUM GROUP, INC. OMB APPROVAL OMB Number: 3235-0145 Expires: August 31, 1999 Estimated average burden hours per form....14.90 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 RARE MEDIUM GROUP, INC. (Name of Issuer) Common Stock, Par Value $.01 Per Share (Title of Class and Securities) 449238203 (CUSIP Number of Class of Securities) David Engvall, Esq. Motient Corporation 10802 Parkridge Boulevard Reston, VA 20191-5416 (703) 758-6000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) May 14, 2001 (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Statement because of Rule 13d-1(b)(3) or (4), check the following: ( ) Check the following box if a fee is being paid with this Statement: ( ) SCHEDULE 13D
- -------------------------------------------------------------------------------- CUSIP No. 449238203 13D - Page 2 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Motient Corporation 93-0976127 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)|_| (b)|_| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) |_| - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER: 0 NUMBER OF SHARES -------------------------------------------------------- BENEFICIALLY OWNED BY 8 SHARED VOTING POWER: 26,940,499* EACH REPORTING -------------------------------------------------------- PERSON WITH 9 SOLE DISPOSITIVE POWER: 0 -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER: 0 -------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 26,940,499* - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 34.6%* - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
*Of this amount, 14,231,001 shares relate to the Reporting Person's voting power over shars of the issuer's Series A convertible preferred stock, which votes on an as-converted basis with the issuer's common stock. 3 of 9 This statement on Schedule 13d is being filed pursuant to Rule 13d-1 of the Rules and Regulations under the Securities Exchange Act of 1934, as amended (the "Act") by Motient Corporation, a Delaware corporation ("Motient"), with respect to the common stock, par value $.01 per share (the "Common Stock") of Rare Medium Group, Inc., a Delaware corporation (the "Company"). Item 1. Security and Issuer. ------------------- This Schedule 13D relates to the Common Stock of the Company. The address of the principal executive office of the Company is 565 Fifth Avenue, 29th Floor, New York, New York 10017. Item 2. Identity and Background. ----------------------- Pursuant to Rule 13d-l of Regulation 13D-G of the General Rules and Regulations under the Act, this statement is being filed on behalf of Motient Corporation, a corporation organized under the laws of the State of Delaware. Motient hereby disclaims beneficial ownership of any shares of the Common Stock which may be voted by Motient, and the filing of this statement shall not be construed as an admission that Motient is, for purposes of Section 13(d) of the Act, the beneficial owner of any such shares of Common Stock. Motient is a provider of wireless data, dispatch and voice communication services. The principal business address of Motient, which also serves as its principal executive office, is 10802 Parkridge Boulevard, Reston, VA 20191-5416. Information with respect to the executive officers and directors of Motient is set forth on Schedule I attached hereto. Neither Motient nor, to Motient's knowledge, any of its executive officers, controlling persons or directors, including, without limitation, the persons identified on Schedule I hereto, has, during the last five years, (i) ever been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. All persons listed on Schedule I hereto are citizens of the United States. Item 3. Source and Amount of Funds or Other Consideration Pursuant to the Voting Agreements, dated as of May 14, 2001, (collectively, the "Rare Medium Stockholder Voting Agreements") between Motient and Apollo Investment Fund IV, L.P. ("Apollo Fund IV"), Motient and Apollo Overseas Partners IV, L.P. 4 of 9 ("Apollo Overseas") and Motient and AIF IV/RRRR L.L.C. ("AIF IV") (Apollo Fund IV, Apollo Overseas and AIF IV are referred to collectively as the "Rare Medium Stockholders"), the Rare Medium Stockholders have agreed to vote all shares of Company Common Stock and the Series A Convertible Preferred Stock of the Company (the "Preferred Stock") to which they have has a right to vote, in favor of the transactions contemplated by the Agreement and Plan of Merger, dated as of May 14, 2001, by and among Motient, a wholly owned subsidiary of Motient (the "Merger Sub") and the Company, as amended (the "Merger Agreement"). The Rare Medium Stockholders have delivered to Motient, or caused to be delivered to Motient, irrevocable proxies to vote all of the Common Stock and Preferred Stock in favor of the approval and adoption of the Merger Agreement and the approval of the merger contemplated thereby, and in favor of each of the other actions contemplated by the Merger Agreement. As of May 14, 2001, to Motient's knowledge, the Rare Medium Stockholders had the right to vote the shares set forth below:
Rare Medium Stockholder Stockholder Common Shares Preferred Shares - ------------ ------------- ---------------- Apollo Fund IV 9,733,445 762,909 Apollo Overseas 522,009 40,913 AIF IV 2,454,045 192,346
- -------------------------------------------------------------------------------- In addition, to Motient's knowledge, the Rare Medium Stockholders have the right to acquire an additional 12,991,501 shares of common stock pursuant to the exercise of warrants. However, the Rare Medium Stockholders have agreed not to exercise such warrants under the terms of the Rare Medium Stockholder Voting Agreements. Item 4. Purpose of Transaction. ---------------------- (a)-(b) The Rare Medium Stockholder Voting Agreements were entered into in connection with the Merger Agreement. The purpose of entering into the Rare Medium Stockholder Voting Agreements was to facilitate consummation of the merger of a wholly owned subsidiary of Motient with and into the Company (the "Merger") and the other transactions contemplated by the Merger Agreement. Pursuant to the terms of the Merger Agreement and upon consummation of the Merger, among other things: (i) Each share of Common Stock outstanding immediately prior to the effective time of the Merger (the "Effective Time") will be exchanged for 0.1 share of a new series of Motient preferred stock ("Motient Series A Preferred Stock"). As a result of the Merger, the Company will become a wholly owned subsidiary of Motient. (ii) At the closing of the Merger, the Rare Medium Stockholders will purchase outstanding commitments, and will replace Baron Capital Partners, L.P. and Singapore Telecommunications Ltd. as guarantors, under Motient's revolving credit facility. The purchase price of these outstanding loans and commitments is approximately $13 million, and the Rare Medium Stockholders will receive an offsetting cash payment in that amount at the close of the merger. 5 of 9 (iii) All shares of Preferred Stock, at the Effective Time, will then be exchanged for nine million shares of common stock of XM Satellite Radio Holdings Inc. (the "XM Shares") owned by Motient, and a note (the "Deficiency Note") from Motient with an aggregate principal amount equal to the difference, if any, between $115 million and the sum of (x) the market value of the XM Shares at the Effective Time and (y) the purchase price of the loans and commitments described in (ii) above. (iv) Each outstanding and unexercised option to purchase Common Stock under the Company's stock option plans (a "Company Option") will be replaced by an option to purchase the number of shares of Motient Series A Preferred Stock equal to the product of (a) one-tenth and (b) the number of shares of Common Stock subject to such Company Option, at an exercise price per share equal to (x) the product of the shares of Common Stock subject to such Company Option and the exercise price per share of such Company Option, divided by (y) the number of shares of Motient Series A Preferred Stock deemed to be purchasable pursuant to such Company Option. (v) Each outstanding warrant to purchase Common Stock (a "Company Warrant") will become a warrant to purchase the number of shares of Motient non-voting preferred stock ("Motient Non-Voting Preferred Stock") equal to the product of (a) one-tenth and (b) the number of shares of Common Stock subject to such Company Warrant, at an exercise price per share equal to (x) the product of the shares of Company Common Stock subject to such Company Warrant and the exercise price per share of such Company Warrant, divided by (y) the number of shares of Motient Non-Voting Preferred Stock deemed to be purchasable pursuant to such Company Warrant. The terms of the Motient Series A Preferred Stock and Motient Non-Voting Preferred Stock will be identical except that Motient Non-Voting Preferred Stock will have no voting rights and the Motient Non-Voting Preferred Stock is convertible into Motient Voting Preferred Stock if transferred to a person or entity that is not an affiliate of Apollo Management, L.P. (c) Except as contemplated in connection with the Merger, not applicable. (d) Upon the completion of the Merger, the directors of the Company shall consist of the directors of the Merger Sub immediately prior to the completion of the Merger and the officers of the Company shall consist of the officers of the Company immediately prior to completion of the Merger. (e) Other than as a result of the Merger described in Item 4(a)-(b) above, not applicable. (f) Except as contemplated in connection with the Merger, not applicable. (g) Upon completion of the Merger, the certificate of incorporation of the Company will be amended and restated to read as nearly as practicable the same as the certificate of incorporation of the Merger Sub, except that the name of the surviving corporation shall be "Rare Medium Group, Inc." 6 of 9 (h)-(i) If the Merger is completed as planned, the Common Stock shall be deregistered under the Securities Act of 1934 and delisted from The Nasdaq Stock Market's National Market. (j) Except as contemplated in connection with the Merger, not applicable. The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which has been filed as an exhibit to this Schedule 13D and is incorporated herein by reference. Item 5. Interest in the Securities of the Issuer. ---------------------------------------- The aggregate number of shares of the Common Stock that Motient may be deemed to share the power to vote or to direct the vote of (and as a result, may, under Rule 13d-3 under the Act, be deemed the beneficial owner of) is 26,940,499, which constitutes approximately 34.6% of the 63,667,797 shares of such Common Stock outstanding as of May 10, 2001, as disclosed in the Company's Quarterly Report on Form 10-Q dated May 15, 2001 for the quarter ended March 31, 2001 giving effect to the vote on an as-converted basis of the 996,171 shares of Preferred Stock Motient has the power to vote as well as the 14.2857:1 Common Stock to Preferred Stock conversion ratio. However, Motient disclaims beneficial ownership of such shares of Common Stock. Other than with respect to the voting rights described in response to Item 3 above and Item 6 below, Motient possesses no powers, rights or privileges with respect to the Common Stock. All other powers, rights and privileges with respect to the Common Stock remain with the Rare Medium Preferred Stockholders, including the right to vote on all matters unrelated to the Merger, as well as the right to receive and the power to direct the receipt of dividends from, and the proceeds from the sale of, such securities. To Motient's knowledge, none of the persons listed on Schedule I hereto beneficially own any shares of Common Stock. Except as described herein, neither Motient nor, to Motient's knowledge, the persons listed on Schedule I hereto, have engaged, within the last sixty (60) days, in any transactions involving the Common Stock. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. ------------------------------------------------------------- Other than the Rare Medium Stockholder Voting Agreements, the proxies granted pursuant thereto and the Merger Agreement (described in Item 4), there are no contracts, understandings, or relationships (legal or otherwise) between 7 of 9 the persons named in Item 2 hereof and any other person or persons with respect to any securities of the Company, including but not limited to transfer or voting of any of the Common Stock or Preferred Stock, finder's fees, joint ventures, loan or option arrangements, put or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. Under the terms and conditions of the Rare Medium Stockholder Voting Agreements, the Rare Medium Stockholders have agreed to not: (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 of Common Stock or Preferred Stock (the "Shares"), except to the extent (i) such Transfer is approved in advance in writing by Motient or (ii) the transferee of the Shares, prior to and as a condition to such Transfer, executes and delivers to Motient an agreement in substantially the form of the Rare Medium Stockholder Voting Agreements; (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 Rare Medium Stockholders from performing their obligations under the Rare Medium Stockholder Voting Agreements. Furthermore, under the terms and conditions of the Rare Medium Stockholder Voting Agreements, the Rare Medium Stockholders have agreed that they shall not directly or indirectly, and shall direct and use their best efforts to cause the Company, each subsidiary of the Company and the representatives of the Company and its subsidiaries not to: (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 (as defined in the Merger Agreement) for the Company, or (b) enter into or participate in any discussions or negotiations with any person regarding a Competing Transaction for the Company, or furnish to any person any information regarding a Competing Transaction for the Company, or take any other action to facilitate or cooperate with the making of any inquiry or proposal regarding a Competing Transaction for the Company; or (c) agree to approve or endorse any Competing Transaction for the Company. The Rare Medium Stockholders have also agreed to vote against any Competing Transaction. 8 of 9 Furthermore, the Rare Medium Stockholders agreed that during the term of each of the Rare Medium Stockholders Voting Agreements, the Rare Medium Stockholders shall not (i) convert or otherwise exchange any shares of Preferred Stock held by any Rare Medium Stockholder (and any shares which are acquired subsequent to May 14, 2001) into shares of Common Stock, (ii) exercise their rights to purchase shares of Common Stock pursuant to any warrants to purchase Common Stock held by any Rare Medium Stockholder (and any such warrants acquired subsequent to May 14, 2001) or (iii) purchase or otherwise acquire any shares of Common Stock. Furthermore, the Rare Medium Stockholders agreed that, during the term of the Rare Medium Stockholder Voting Agreements, they would not exercise any of their rights under Section 5 (Optional Redemption) of Article Four of the restated certificate of Incorporation of the Company, including, without limitation, their right to elect that the Company redeem shares of Preferred Stock for cash in the event of a change of control. Furthermore, the Rare Medium Stockholders acknowledged and agreed that the Company Warrants (as defined in the Merger Agreement) held by each Rare Medium Stockholder shall be assumed by Motient and become warrants to purchase Motient's Series A Non-Voting Preferred Stock in accordance with Section 2.05 of the Merger Agreement. The Rare Medium Stockholders acknowledged the obligations of the New Lenders (as defined in the Merger Agreement) under Section 2.06 of the Merger Agreement, and subject to the terms and conditions set forth in the Merger Agreement, the Rare Medium Stockholders agreed to perform, or cause their affiliates or designees to perform, as the case may be, the obligations of the New Lenders under Section 2.06 of the Merger Agreement. The foregoing descriptions of the Rare Medium Stockholder Voting Agreements do not purport to be complete and are qualified in their entirety by reference to the Rare Medium Stockholder Voting Agreements, a copy of each of which has been filed as an exhibit to this Schedule 13D and is incorporated herein by reference. Item 7. Material to be Filed as Exhibits. -------------------------------- Exhibit 1 Agreement and Plan of Merger, dated as of May 14, 2001, by and among Motient, Merger Sub and the Company.* Exhibit 2 Voting Agreement, dated as of May 14, 2001, between Motient and Apollo Investment Fund IV, L.P. Exhibit 3 Voting Agreement, dated as of May 14, 2001, between Motient and Apollo Overseas Partners IV, L.P. Exhibit 4 Voting Agreement, dated as of May 14, 2001, between Motient and AIF IV/RRRR L.L.C. *Incorporated by reference to the Form 8-K/A filed by Motient on May 15, 2001 9 of 9 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: May 24, 2001 MOTIENT CORPORATION By: /s/David H. Engvall ----------------------------------------------- Name: David H. Engvall Title: Vice President and General Counsel Schedule I DIRECTORS OF MOTIENT Present Principal Name and Business Address Occupation or Employment - ------------------------- ------------------------ Billy J. Parrott President and Chief Executive Officer, Antifire, Inc. Antifire, Inc. 276 Fifth Avenue Suite 301 New York, NY 10001 Gary M. Parsons Chairman of the Board of Directors, Motient Corporation Motient Corporation 10802 Parkridge Boulevard Reston, VA 20191 Walter V. Purnell, Jr. President and Chief Executive Officer, Motient Corporation Motient Corporation 10802 Parkridge Boulevard Reston, VA 20191 Andrew A. Quartner Corporate Counsel, XO Communications, Inc. XO Communications, Inc. 1730 Rhode Island Avenue, N.W. Jack A. Shaw Senior Executive Vice President, Hughes Electronics Corporation Hughes Electronics Corporation 200 N. Sepulveda Boulevard El Segundo, CA 90024 Jonelle St. John Director 40653 Shady Creek Court Leesburg, Virginia 20175 EXECUTIVE OFFICERS OF MOTIENT Name and Business Address Present Principal Occupation or Employment (all business addresses are: (all with Motient Corporation) - ---------------------------- ------------------------------------------ Motient Corporation 10802 Parkridge Boulevard Reston, VA 20191) David H. Engvall Vice President and General Counsel Dennis W. Matheson Senior Vice President and Chief Technical Officer Gary M. Parsons Chairman of the Board Walter V. Purnell, Jr. President and Chief Executive Officer W. Bartlett Snell Senior Vice President and Chief Financial Officer EX-9 2 exhibit2.txt VOTING AGREEMENT WITH APOLLO INVESTMENT FUND COMPANY STOCKHOLDER VOTING AGREEMENT (APOLLO INVESTMENT FUND IV, L.P.) THIS VOTING AGREEMENT (this "Voting Agreement") is entered into as of May 14, 2001 by and between Motient Corporation, a Delaware corporation ("Acquiror"), and the undersigned stockholder (the "Stockholder") of Rare medium Group, Inc., a Delaware corporation (the "Company"). WHEREAS, pursuant to, and upon the terms and subject to the conditions set forth in, that certain Agreement and Plan of Merger, dated as of May 14, 2001 (the "Merger Agreement"), by and between Acquiror, the Company and MR Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of the Acquiror ("Merger Sub"), 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 Acquiror to enter into the Merger Agreement, the Stockholder has agreed to execute and deliver to Acquiror 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. 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 Company Common Stock and Company Preferred Stock as set forth on Annex A hereto and any other such 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 the Company, 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 Merger and the Merger Agreement and against any Competing Transaction for the Company. Contemporaneously with the execution of this Voting Agreement, (a) the Stockholder has delivered to Acquiror 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 has caused to be delivered to Acquiror an additional Proxy executed on behalf of the record owner of any outstanding shares of Company Common Stock and Company Preferred 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 Acquiror or (ii) the transferee of the Shares, prior to and as a condition to such Transfer, executes and delivers to Acquiror 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. Covenants with Respect to the Company. The Stockholder hereby agrees that during the Term, the Stockholder shall not, and shall direct and use its best efforts to cause the Company, the Company Subsidiaries and the Representatives of the Company and the Company Subsidiaries not to, 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 the Company; or (b) enter into or participate in any discussions or negotiations with any Person regarding a Competing Transaction for the Company, or furnish to any Person any information regarding a Competing Transaction for the Company, or take any other action to facilitate or cooperate with the making of any inquiry or proposal regarding a Competing Transaction for the Company; or (c) agree to approve or endorse any Competing Transaction for the Company. 5. Covenants with Respect to XMSR Common Stock. During any Short Sale Prohibition Period, the Stockholder shall, and shall cause each of its affiliates (as such term is defined in the Merger Agreement) to, comply with Section 16(c) of the Exchange Act with respect to transactions in XM Class A Stock to the same extent as if Section 16(c) of the Exchange Act, applied by its terms to the Stockholder. For purposes of this Section 5, a "Short Sale Prohibition Period" means the period of time commencing on the date of this Voting Agreement and ending at the Termination Time (as defined below). 6. Additional Covenants. The Stockholder hereby agrees that during the Term, the Stockholder shall not (i) convert or otherwise exchange any shares of Preferred Stock of the Company held by the Stockholder (and any such shares which are hereafter acquired by the Stockholder) into shares of Company Common Stock, (ii) exercise its rights to purchase shares of Company Common Stock pursuant to any warrants to purchase Company Common Stock held by the Stockholder (and any such warrants which are hereafter acquired by the Stockholder), or (iii) purchase or otherwise acquire any shares of Company Common Stock. 7. Waiver of Optional Redemption Rights. The Stockholder hereby agrees during the Term not to exercise any and all of its rights under Section 5 (Optional Redemption) of Article Fourth of the Restated Certificate of Incorporation of Company, including without limitation, its right to elect that the Company redeem shares of Preferred Stock of the Company for cash. 8. Warrants; Obligations of New Lenders. The Stockholder acknowledges and agrees that the Company Warrants (as defined in the Merger Agreement) held by it shall be assumed by Acquiror and become warrants to purchase Acquiror Series A Non-Voting Preferred Stock in accordance with the terms of Section 2.05 of the Merger Agreement. The Stockholder acknowledges the obligations of the New Lenders (as defined in the Merger Agreement) under Section 2.06 of the Merger Agreement, and subject to the terms and conditions set forth in the Merger Agreement, the Stockholder agrees to perform, or cause it affiliates or designees to perform, as the case may be, the obligations of the New Lenders under Section 2.06 of the Merger Agreement. 9. Representations and Warranties of Stockholder. The Stockholder hereby represents and warrants to Acquiror as follows: (a) the Stockholder understands that the Discrepancy Notes and the XM Class A Stock (the "Merger Securities") paid to the Stockholder as Preferred Stock Merger Consideration in the Merger (i) have not been, and will not be prior to the Effective Time, registered under the Securities Act of 1933, as amended (the "Securities Act"), or any state securities laws, (ii) are being offered and sold pursuant to an exemption from registration contained in the Securities Act based in part on the representations of the Stockholder contained in this Agreement, and (iii) the Merger Securities may not be sold unless such disposition is registered under the Securities Act and applicable state securities laws or is exempt from registration thereunder; (b) the Stockholder is acquiring the Merger Securities for its own account, for investment only and not with a view to the distribution thereof within the meaning of the Securities Act, (c) the Stockholder is an "Accredited Investor" (as defined in Rule 501(a) under the Securities Act), and (d) the Stockholder is domiciled in the State of New York and the Merger Securities were offered and sold to the Stockholder solely in the State of New York. 10. Termination of Existing Agreements. Subject to and effective upon the consummation of the Merger, the Stockholders hereby agree to terminate those agreements with the Company specified on Exhibit B. 11. Authorization; Binding Obligation. The Stockholder hereby represents and warrants to Acquiror that (a) 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). 12. No Conflict. The Stockholder hereby represents and warrants to 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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 the Company including, without limitation, those actions permitted by Section 5.05(e) of the Merger Agreement. 24. 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. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 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. MOTIENT CORPORATION By: /s/Walter V. Purnell, Jr. ------------------------------------- Name: Walter V. Purnell, Jr. ------------------------------------- Title: President and Chief Executive Officer ------------------------------------- APOLLO INVESTMENT FUND IV, L.P. By: /s/Andrew Africk ------------------------------------- Name: Andrew Africk ------------------------------------- Title: Vice President ------------------------------------- ANNEX A 9,733,445 Shares of Company Common Stock 762,909 Shares of Company Preferred Stock EXHIBIT A Form of Irrevocable Proxy The undersigned Stockholder of Rare Medium Group, Inc., a Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent permitted by law) appoints and constitutes Motient Corporation, a Delaware corporation ("Acquiror"), and Walter v. Purnell, Jr. and David Engvall of Acquiror in their respective capacities as officers of Acquiror, and any individual who shall hereafter succeed to any such office of Acquiror 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 Company Voting Agreement dated as of the date hereof, between Acquiror and the undersigned (the "Company 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 below) shall become effective in accordance with the terms and subject to the conditions set forth in the Merger Agreement (as defined 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 Company Voting Agreement), is coupled with an interest, is granted in connection with the execution and delivery of the Company Voting Agreement, and is granted in consideration of Acquiror 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 the Company, however called, or in connection with any solicitation of written consents from stockholders of the Company, 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 Merger Agreement and the approval of the merger (the "Merger") contemplated thereby, and in favor of each of the other actions contemplated by 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 APOLLO INVESTMENT FUND IV, L.P. By: ---------------------------------- Name: ---------------------------------- Title: ---------------------------------- Number of Shares and class of Shares owned of record as of the date of this proxy: ------------------- EXHIBIT B Amended and Restated Securities Purchase Agreement, dated as of June 4, 1999, among Rare Medium Group, Inc. and Apollo Investment Fund IV, L.P. and Apollo Overseas Partners IV, L.P. and AIF IV/RRRR LLC, and any documents, certificate or agreements entered into in connection therewith. EX-9 3 exhibit3.txt VOTING AGREEMENT WITH APOLLO OVERSEAS PARTNERS COMPANY STOCKHOLDER VOTING AGREEMENT (APOLLO OVERSEAS PARTNERS IV, L.P.) THIS VOTING AGREEMENT (this "Voting Agreement") is entered into as of May 14, 2001 by and between Motient Corporation, a Delaware corporation ("Acquiror"), and the undersigned stockholder (the "Stockholder") of Rare medium Group, Inc., a Delaware corporation (the "Company"). WHEREAS, pursuant to, and upon the terms and subject to the conditions set forth in, that certain Agreement and Plan of Merger, dated as of May 14, 2001 (the "Merger Agreement"), by and between Acquiror, the Company and MR Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of the Acquiror ("Merger Sub"), 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 Acquiror to enter into the Merger Agreement, the Stockholder has agreed to execute and deliver to Acquiror 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. 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 Company Common Stock and Company Preferred Stock as set forth on Annex A hereto and any other such 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 the Company, 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 Merger and the Merger Agreement and against any Competing Transaction for the Company. Contemporaneously with the execution of this Voting Agreement, (a) the Stockholder has delivered to Acquiror 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 has caused to be delivered to Acquiror an additional Proxy executed on behalf of the record owner of any outstanding shares of Company Common Stock and Company Preferred 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 Acquiror or (ii) the transferee of the Shares, prior to and as a condition to such Transfer, executes and delivers to Acquiror 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. Covenants with Respect to the Company. The Stockholder hereby agrees that during the Term, the Stockholder shall not, and shall direct and use its best efforts to cause the Company, the Company Subsidiaries and the Representatives of the Company and the Company Subsidiaries not to, 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 the Company; or (b) enter into or participate in any discussions or negotiations with any Person regarding a Competing Transaction for the Company, or furnish to any Person any information regarding a Competing Transaction for the Company, or take any other action to facilitate or cooperate with the making of any inquiry or proposal regarding a Competing Transaction for the Company; or (c) agree to approve or endorse any Competing Transaction for the Company. 5. Covenants with Respect to XMSR Common Stock. During any Short Sale Prohibition Period, the Stockholder shall, and shall cause each of its affiliates (as such term is defined in the Merger Agreement) to, comply with Section 16(c) of the Exchange Act with respect to transactions in XM Class A Stock to the same extent as if Section 16(c) of the Exchange Act, applied by its terms to the Stockholder. For purposes of this Section 5, a "Short Sale Prohibition Period" means the period of time commencing on the date of this Voting Agreement and ending at the Termination Time (as defined below). 6. Additional Covenants. The Stockholder hereby agrees that during the Term, the Stockholder shall not (i) convert or otherwise exchange any shares of Preferred Stock of the Company held by the Stockholder (and any such shares which are hereafter acquired by the Stockholder) into shares of Company Common Stock, (ii) exercise its rights to purchase shares of Company Common Stock pursuant to any warrants to purchase Company Common Stock held by the Stockholder (and any such warrants which are hereafter acquired by the Stockholder), or (iii) purchase or otherwise acquire any shares of Company Common Stock. 7. Waiver of Optional Redemption Rights. The Stockholder hereby agrees during the Term not to exercise any and all of its rights under Section 5 (Optional Redemption) of Article Fourth of the Restated Certificate of Incorporation of Company, including without limitation, its right to elect that the Company redeem shares of Preferred Stock of the Company for cash. 8. Warrants; Obligations of New Lenders. The Stockholder acknowledges and agrees that the Company Warrants (as defined in the Merger Agreement) held by it shall be assumed by Acquiror and become warrants to purchase Acquiror Series A Non-Voting Preferred Stock in accordance with the terms of Section 2.05 of the Merger Agreement. The Stockholder acknowledges the obligations of the New Lenders (as defined in the Merger Agreement) under Section 2.06 of the Merger Agreement, and subject to the terms and conditions set forth in the Merger Agreement, the Stockholder agrees to perform, or cause it affiliates or designees to perform, as the case may be, the obligations of the New Lenders under Section 2.06 of the Merger Agreement. 9. Representations and Warranties of Stockholder. The Stockholder hereby represents and warrants to Acquiror as follows: (a) the Stockholder understands that the Discrepancy Notes and the XM Class A Stock (the "Merger Securities") paid to the Stockholder as Preferred Stock Merger Consideration in the Merger (i) have not been, and will not be prior to the Effective Time, registered under the Securities Act of 1933, as amended (the "Securities Act"), or any state securities laws, (ii) are being offered and sold pursuant to an exemption from registration contained in the Securities Act based in part on the representations of the Stockholder contained in this Agreement, and (iii) the Merger Securities may not be sold unless such disposition is registered under the Securities Act and applicable state securities laws or is exempt from registration thereunder; (b) the Stockholder is acquiring the Merger Securities for its own account, for investment only and not with a view to the distribution thereof within the meaning of the Securities Act, (c) the Stockholder is an "Accredited Investor" (as defined in Rule 501(a) under the Securities Act), and (d) the Stockholder is domiciled in the State of New York and the Merger Securities were offered and sold to the Stockholder solely in the State of New York. 10. Termination of Existing Agreements. Subject to and effective upon the consummation of the Merger, the Stockholders hereby agree to terminate those agreements with the Company specified on Exhibit B. 11. Authorization; Binding Obligation. The Stockholder hereby represents and warrants to Acquiror that (a) 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). 12. No Conflict. The Stockholder hereby represents and warrants to 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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 the Company including, without limitation, those actions permitted by Section 5.05(e) of the Merger Agreement. 24. 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. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 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. MOTIENT CORPORATION By: /s/Walter V. Purnell, Jr. ------------------------------------- Name: Walter V. Purnell, Jr. ------------------------------------- Title: President and Chief Executive Officer ------------------------------------- APOLLO OVERSEAS PARTNERS IV, L.P. By: /s/Andrew Africk ------------------------------------- Name: Andrew Africk ------------------------------------- Title: Vice President ------------------------------------- ANNEX A 522,009 Shares of Company Common Stock 40,914 Shares of Company Preferred Stock EXHIBIT A Form of Irrevocable Proxy The undersigned Stockholder of Rare Medium Group, Inc., a Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent permitted by law) appoints and constitutes Motient Corporation, a Delaware corporation ("Acquiror"), and Walter V. Purnell, Jr. and David Engvall of Acquiror in their respective capacities as officers of Acquiror, and any individual who shall hereafter succeed to any such office of Acquiror 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 Company Voting Agreement dated as of the date hereof, between Acquiror and the undersigned (the "Company 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 below) shall become effective in accordance with the terms and subject to the conditions set forth in the Merger Agreement (as defined 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 Company Voting Agreement), is coupled with an interest, is granted in connection with the execution and delivery of the Company Voting Agreement, and is granted in consideration of Acquiror 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 the Company, however called, or in connection with any solicitation of written consents from stockholders of the Company, 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 Merger Agreement and the approval of the merger (the "Merger") contemplated thereby, and in favor of each of the other actions contemplated by 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 APOLLO OVERSEAS PARTNERS IV, L.P. By: ----------------------------------- Name: ----------------------------------- Title: ----------------------------------- Number of Shares and class of Shares owned of record as of the date of this proxy: ----------------- EXHIBIT B Amended and Restated Securities Purchase Agreement, dated as of June 4, 1999, among Rare Medium Group, Inc. and Apollo Investment Fund IV, L.P. and Apollo Overseas Partners IV, L.P. and AIF IV/RRRR LLC, and any documents, certificate or agreements entered into in connection therewith. EX-9 4 exhibit4.txt VOTING AGREEMENT WITH AIF IV/RRRR COMPANY STOCKHOLDER VOTING AGREEMENT (AIF IV/RRRR L.L.C.) THIS VOTING AGREEMENT (this "Voting Agreement") is entered into as of May 14, 2001 by and between Motient Corporation, a Delaware corporation ("Acquiror"), and the undersigned stockholder (the "Stockholder") of Rare medium Group, Inc., a Delaware corporation (the "Company"). WHEREAS, pursuant to, and upon the terms and subject to the conditions set forth in, that certain Agreement and Plan of Merger, dated as of May 14, 2001 (the "Merger Agreement"), by and between Acquiror, the Company and MR Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of the Acquiror ("Merger Sub"), 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 Acquiror to enter into the Merger Agreement, the Stockholder has agreed to execute and deliver to Acquiror 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. 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 Company Common Stock and Company Preferred Stock as set forth on Annex A hereto and any other such 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 the Company, 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 Merger and the Merger Agreement and against any Competing Transaction for the Company. Contemporaneously with the execution of this Voting Agreement, (a) the Stockholder has delivered to Acquiror 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 has caused to be delivered to Acquiror an additional Proxy executed on behalf of the record owner of any outstanding shares of Company Common Stock and Company Preferred 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 Acquiror or (ii) the transferee of the Shares, prior to and as a condition to such Transfer, executes and delivers to Acquiror 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. Covenants with Respect to the Company. The Stockholder hereby agrees that during the Term, the Stockholder shall not, and shall direct and use its best efforts to cause the Company, the Company Subsidiaries and the Representatives of the Company and the Company Subsidiaries not to, 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 the Company; or (b) enter into or participate in any discussions or negotiations with any Person regarding a Competing Transaction for the Company, or furnish to any Person any information regarding a Competing Transaction for the Company, or take any other action to facilitate or cooperate with the making of any inquiry or proposal regarding a Competing Transaction for the Company; or (c) agree to approve or endorse any Competing Transaction for the Company. 5. Covenants with Respect to XMSR Common Stock. During any Short Sale Prohibition Period, the Stockholder shall, and shall cause each of its affiliates (as such term is defined in the Merger Agreement) to, comply with Section 16(c) of the Exchange Act with respect to transactions in XM Class A Stock to the same extent as if Section 16(c) of the Exchange Act, applied by its terms to the Stockholder. For purposes of this Section 5, a "Short Sale Prohibition Period" means the period of time commencing on the date of this Voting Agreement and ending at the Termination Time (as defined below). 6. Additional Covenants. The Stockholder hereby agrees that during the Term, the Stockholder shall not (i) convert or otherwise exchange any shares of Preferred Stock of the Company held by the Stockholder (and any such shares which are hereafter acquired by the Stockholder) into shares of Company Common Stock, (ii) exercise its rights to purchase shares of Company Common Stock pursuant to any warrants to purchase Company Common Stock held by the Stockholder (and any such warrants which are hereafter acquired by the Stockholder), or (iii) purchase or otherwise acquire any shares of Company Common Stock. 7. Waiver of Optional Redemption Rights. The Stockholder hereby agrees during the Term not to exercise any and all of its rights under Section 5 (Optional Redemption) of Article Fourth of the Restated Certificate of Incorporation of Company, including without limitation, its right to elect that the Company redeem shares of Preferred Stock of the Company for cash. 8. Warrants; Obligations of New Lenders. The Stockholder acknowledges and agrees that the Company Warrants (as defined in the Merger Agreement) held by it shall be assumed by Acquiror and become warrants to purchase Acquiror Series A Non-Voting Preferred Stock in accordance with the terms of Section 2.05 of the Merger Agreement. The Stockholder acknowledges the obligations of the New Lenders (as defined in the Merger Agreement) under Section 2.06 of the Merger Agreement, and subject to the terms and conditions set forth in the Merger Agreement, the Stockholder agrees to perform, or cause it affiliates or designees to perform, as the case may be, the obligations of the New Lenders under Section 2.06 of the Merger Agreement. 9. Representations and Warranties of Stockholder. The Stockholder hereby represents and warrants to Acquiror as follows: (a) the Stockholder understands that the Discrepancy Notes and the XM Class A Stock (the "Merger Securities") paid to the Stockholder as Preferred Stock Merger Consideration in the Merger (i) have not been, and will not be prior to the Effective Time, registered under the Securities Act of 1933, as amended (the "Securities Act"), or any state securities laws, (ii) are being offered and sold pursuant to an exemption from registration contained in the Securities Act based in part on the representations of the Stockholder contained in this Agreement, and (iii) the Merger Securities may not be sold unless such disposition is registered under the Securities Act and applicable state securities laws or is exempt from registration thereunder; (b) the Stockholder is acquiring the Merger Securities for its own account, for investment only and not with a view to the distribution thereof within the meaning of the Securities Act, (c) the Stockholder is an "Accredited Investor" (as defined in Rule 501(a) under the Securities Act), and (d) the Stockholder is domiciled in the State of New York and the Merger Securities were offered and sold to the Stockholder solely in the State of New York. 10. Termination of Existing Agreements. Subject to and effective upon the consummation of the Merger, the Stockholders hereby agree to terminate those agreements with the Company specified on Exhibit B. 11. Authorization; Binding Obligation. The Stockholder hereby represents and warrants to Acquiror that (a) 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). 12. No Conflict. The Stockholder hereby represents and warrants to 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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 the Company including, without limitation, those actions permitted by Section 5.05(e) of the Merger Agreement. 24. 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. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 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. MOTIENT CORPORATION By: /s/Walter V. Purnell, Jr. ------------------------------------- Name: Walter V. Purnell, Jr. ------------------------------------- Title: President and Chief Executive Officer ------------------------------------- AIF IV/RRRR L.L.C. By: /s/Andrew Africk ------------------------------------- Name: Andrew Africk ------------------------------------- Title: Vice President ------------------------------------- ANNEX A 2,454,045 Shares of Company Preferred Stock 192,348 Shares of Company Preferred Stock EXHIBIT A Form of Irrevocable Proxy The undersigned Stockholder of Rare Medium Group, Inc., a Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent permitted by law) appoints and constitutes Motient Corporation, a Delaware corporation ("Acquiror"), and Walter v. Purnell, Jr. and David Engvall of Acquiror in their respective capacities as officers of Acquiror, and any individual who shall hereafter succeed to any such office of Acquiror 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 Company Voting Agreement dated as of the date hereof, between Acquiror and the undersigned (the "Company 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 below) shall become effective in accordance with the terms and subject to the conditions set forth in the Merger Agreement (as defined 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 Company Voting Agreement), is coupled with an interest, is granted in connection with the execution and delivery of the Company Voting Agreement, and is granted in consideration of Acquiror 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 the Company, however called, or in connection with any solicitation of written consents from stockholders of the Company, 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 Merger Agreement and the approval of the merger (the "Merger") contemplated thereby, and in favor of each of the other actions contemplated by 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 AIF IV/RRRR L.L.C. By: -------------------------------------- Name: -------------------------------------- Title: -------------------------------------- Number of Shares and class of Shares owned of record as of the date of this proxy: ------------------- EXHIBIT B Amended and Restated Securities Purchase Agreement, dated as of June 4, 1999, among Rare Medium Group, Inc. and Apollo Investment Fund IV, L.P. and Apollo Overseas Partners IV, L.P. and AIF IV/RRRR LLC, and any documents, certificate or agreements entered into in connection therewith. -----END PRIVACY-ENHANCED MESSAGE-----