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EXHIBIT 99.5
FORM OF AFFILIATE AGREEMENT
, 2001
Motient Corporation
00000 Xxxxxxxxx Xxxx.
Xxxxxx, XX 00000-0000
Attn: General Counsel
RE: AFFILIATE AGREEMENT
Ladies and Gentlemen:
The undersigned has been advised that as of the date of this letter the
undersigned may be deemed to be an "affiliate" of Rare Medium Group, Inc., a
Delaware corporation (the "Company"), as the term "affiliate" is defined for
purposes of paragraphs (c) and (d) of Rule 145 of the rules and regulations of
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"). Pursuant to the terms of the Agreement and
Plan of Merger, dated as of May 14, 2001 (the "Merger Agreement"), among Motient
Corporation, a Delaware corporation ("Acquiror"), MR Acquisition Corp., a
Delaware corporation and wholly-owned subsidiary of Acquiror ("Merger Sub"), and
the Company, Merger Sub will be merged with and into Company (the "Merger") and
Acquiror shall continue as the surviving corporation of the Merger (the
"Surviving Corporation").
As a result of the Merger, the issued and outstanding shares of common
stock of the Company, par value $0.01 per share ("Company Common Stock"), will
be converted into the right to receive Series A Preferred Stock of the Surviving
Corporation, par value $0.01 per share ("Surviving Corporation Preferred
Stock"), as set forth in the Merger Agreement.
The undersigned represents, warrants and covenants to Acquiror that in the
event that the undersigned receives any Surviving Corporation Preferred Stock as
a result of the Merger:
1. The undersigned has full power to execute and deliver this letter
and to make the representations and warranties herein and to perform the
obligations hereunder.
2. The undersigned has carefully read this letter and the Merger
Agreement and has discussed the requirements of such documents and other
applicable limitations upon the undersigned's ability to sell, transfer or
otherwise dispose of the Surviving Corporation Preferred Stock, to the
extent the undersigned considered necessary, with counsel to the
undersigned or with counsel for the Company.
3. The undersigned will not make any sale, transfer or other
disposition of the Surviving Corporation Preferred Stock in violation of
the Act.
4. The undersigned has been advised that the issuance of Surviving
Corporation Preferred Stock to the undersigned pursuant to the Merger has
been or will be registered with the Commission under the Act on a
Registration Statement on Form S-4. However, the undersigned has also been
advised that, because the undersigned may be deemed to have been an
"affiliate" of the Company at the time the Merger was submitted for a vote
of the stockholders of the Company and the sale, transfer or other
disposition by the undersigned of the Surviving Corporation Preferred Stock
has not been registered under the Act, the undersigned may not sell,
transfer or otherwise dispose of the Surviving Corporation Preferred Stock
issued to the undersigned in the Merger unless (i) such sale, transfer or
other disposition has been registered under the Act, (ii) such sale,
transfer or other disposition is made in conformity with the volume and
other limitations of Rule 145 or, to the extent applicable, Rule 144
promulgated by the Commission under the Act, or (iii) in the opinion of
counsel reasonably acceptable to the Surviving Corporation, registration is
not required for such sale, transfer or other disposition under the Act.
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5. The undersigned understands that the Surviving Corporation is under
no obligation to register the sale, transfer or other disposition of the
Surviving Corporation Preferred Stock by, or on behalf of, the undersigned
under the Act or to take any other action necessary in order to make
compliance with an exemption from such registration available.
6. The undersigned also understands that stop transfer instructions
will be given to the Surviving Corporation's transfer agents with respect
to the Surviving Corporation Preferred Stock and that there will be placed
on the certificates for the Surviving Corporation Preferred Stock issued to
the undersigned, or any substitutions therefor, a legend stating in
substance:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 000 XXXXXXXXXXX XXXXX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), APPLIES. THE SECURITIES
MAY NOT BE SOLD, OFFERED FOR SALE OR OTHERWISE HYPOTHECATED OR
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE ACT AND APPLICABLE UNITED STATES STATE
SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION OR SAFE HARBOR
FROM REGISTRATION UNDER THE ACT AND SUCH STATE SECURITIES LAWS UPON
RECEIPT BY MOTIENT CORPORATION (THE "COMPANY") OF A WRITTEN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED."
7. The undersigned understands and agrees that the legend set forth in
paragraph 6 above shall be removed by delivery of substitute certificates
without such legend if the undersigned has delivered to the Surviving
Corporation a copy of a letter from the staff of the Commission, or an
opinion of counsel in form and substance reasonably satisfactory to the
Surviving Corporation, to the effect that such legend is not required for
purposes of the Act.
Execution of this letter shall not be considered an admission that the
undersigned is an "affiliate" of the Company as described in the first paragraph
of this letter, or as a waiver of any rights the undersigned may have to object
to any claim that the undersigned is such an affiliate on or after the date of
this letter.
Any notices or any other communications in connection herewith shall be in
writing and shall be given to Acquiror at Acquiror's address on the first page
of this letter and to the undersigned at the address set forth below the
undersigned's name; or to such other address or person as Acquiror shall furnish
to the undersigned in writing or that the undersigned shall furnish to Acquiror
in writing in accordance with the provisions of this paragraph; and shall be
deemed to have been duly received if so given (i) if delivered in person or by
courier, upon actual receipt by the intended party, (ii) if sent by telecopy or
facsimile transmission, when the answerback is received, or (iii) if sent by
mail, upon five days after such notice or other communication is deposited in
the mail.
This agreement shall be governed by the laws of the State of Delaware
regardless of applicable principles of conflicts of laws. This agreement shall
be binding upon the undersigned and Acquiror and their respective successors and
assigns. This agreement is the complete agreement between the undersigned and
Acquiror concerning the subject matter hereof. Nothing set forth herein,
however, shall be construed to limit in any way any of the undersigned's other
rights incident to ownership of Surviving Corporation Preferred Stock to be
received by the undersigned pursuant to the terms of the Merger Agreement. In
the event that any signature hereto is delivered by facsimile transmission, such
signature shall create a valid and binding obligation of the executing party
with the same force and effect as if such facsimile signature page were an
original thereof.
The undersigned has carefully read this letter and understands the
limitations imposed upon the sale, assignment or transfer of Surviving
Corporation Preferred Stock contained herein and imposed by Rule 145 under the
Act.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this letter and return such
counterpart to the undersigned at the address indicated above, at which time
this letter shall become a binding agreement between you and the undersigned.
Very truly yours,
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Signature
Name:
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Date:
Address:
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AGREED TO AND ACCEPTED as of
, 2001
MOTIENT CORPORATION
By:
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Name:
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Title:
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