Contract
Exhibit 4.1
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE
TRANSFERRED, SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
AETHER HOLDINGS, INC. THAT SUCH REGISTRATION IS NOT REQUIRED.
| Right to Purchase 500,000 shares of Common Stock of Aether Holdings, Inc. (subject to adjustment as provided herein) |
COMMON STOCK PURCHASE WARRANT
| Warrant No. W00000173 | Issue Date: November 7, 2006 |
AETHER HOLDINGS, INC., a corporation organized under the laws of the State of Delaware (the
“Company”), hereby certifies that, for value received, and as an inducement to Xxxxxx X.
Xxxxxxx to enter into that certain Equity Interest and Asset Purchase Agreement, dated as of August
21, 2006, among the Company, Athlete’s Foot Marketing Associates, LLC, Xxxxxx X. Xxxxxxx and
certain other parties thereto, Xxxxxx X. Xxxxxxx, residing at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX
00000, or his permitted assigns as set forth herein (the “Holder”), is entitled, subject to
the terms and conditions set forth below, to purchase from the Company at any time after the Issue
Date set forth above until 5:00 p.m., E.S.T. on the third (3rd) anniversary of the Issue Date (the
“Expiration Date”), up to 500,000 fully paid and nonassessable shares of Common Stock (the
“Warrant Shares”) at a per share exercise price equal to the closing sale price of Common
Stock on the Issue Date (the “Exercise Price”). The number, character and Exercise Price
of such shares of Common Stock are subject to adjustment as provided herein.
As used herein, capitalized terms, in addition to the terms defined elsewhere herein and
unless the context otherwise requires, have the following respective meanings:
(a) The term “Affiliate” shall mean with respect to the Person in question, any other
Person that, directly or indirectly, (i) owns or controls ten percent (10%) or more of the
outstanding voting and/or equity interests of such Person, or (ii) controls, is controlled by or is
under common control with, the Person in question, and shall include, as applicable, members of the
Immediate Family of such Person. For the purposes of this definition, the term “control” and its
derivations shall mean having the power, directly or indirectly, to direct the management, policies
or general conduct of business of the Person in question, whether by the ownership of voting
securities, contract or otherwise.
(b) The term “Business Day” means a day other than a Saturday, Sunday or other day on
which commercial banks in the State of New York, the State of Georgia or the State of Maryland are
authorized or required by law to close.
(c) The term “Commission” shall mean the United States Securities and Exchange
Commission or any other federal agency at the time administering the Securities Act.
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(d) The term “Company” means Aether Holdings, Inc. and any corporation which shall
succeed or assume the obligations of Aether Holdings, Inc. hereunder.
(e) The term “Common Stock” means (i) the Company’s common stock, $1.00 par value per
share, and (ii) any other securities into which or for which any of the securities described in
clause (i) may be converted or exchanged pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise.
(f) The term “Immediate Family” means a person’s spouse, parent, child, sibling,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law and anyone
else who resides in the person’s home.
(g) The term “Other Securities” refers to any stock (other than Common Stock) and
other securities of the Company or any other person (corporate or otherwise) which the Holder of
the Warrant at any time shall be entitled to receive, or shall have received, on the exercise of
the Warrant, in lieu of or in addition to Common Stock, or which at any time shall be issuable or
shall have been issued in exchange for or in replacement of Common Stock or Other Securities
pursuant to Section 2 or otherwise.
(h) The term “Person” shall mean any natural person, corporation, general or limited
partnership, limited liability company, association, joint venture, trust, estate, governmental
authority or other legal entity, in each case whether in its own or a representative capacity.
(i) “Securities Act” shall mean the U.S. Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission promulgated thereunder, all
as the same shall be in effect from time to time.
(j) “Voting Agreement” shall mean that certain Voting Agreement, dated as of the even
date herewith, between the Company and the Holder.
1. Exercise of Warrant.
1.1. Number of Shares Issuable upon Exercise. From and after the Issue Date through
and including the Expiration Date, the Holder hereof shall be entitled to receive, upon exercise of
this Warrant in whole in accordance with the terms of subsection 1.2 or upon exercise of this
Warrant in part in accordance with subsection 1.3, shares of Common Stock of the Company, subject
to adjustment pursuant to Section 2.
1.2. Full Exercise. This Warrant may be exercised in full by the Holder hereof by
delivery of an original or facsimile copy of the form of subscription attached as Exhibit A hereto
(the “Subscription Form”) duly executed by such Holder and surrender of the original
Warrant within four (4) days of exercise, to the Company at its principal office or at the office
of its Warrant Agent (as provided hereinafter), accompanied by payment, in cash, wire transfer of
immediately available funds or by certified or official bank check payable to the order of the
Company, in the amount obtained by multiplying the number of shares of Common Stock for which this
Warrant is then exercisable by the Exercise Price then in effect.
1.3. Partial Exercise. This Warrant may be exercised in part (but not for a
fractional share) by surrender of this Warrant in the manner and at the place provided in
subsection 1.2 except that the amount payable by the Holder on such partial exercise shall be the
amount obtained by multiplying (a) the number of whole shares of Common Stock designated by the
Holder in the Subscription Form by (b) the Exercise Price then in effect. On any such partial
exercise, the Company, at its expense, will
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forthwith issue and deliver to or on the order of the Holder hereof a new Warrant of like
tenor, in the name of the Holder hereof or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may request, the whole number of shares of Common Stock for which such
Warrant may still be exercised.
1.4. Fair Market Value. “Fair Market Value” of a share of Common Stock as of a
particular date (the “Determination Date”) shall mean:
(a) If the Company’s Common Stock is traded on an exchange, such as The New York Stock
Exchange, The American Stock Exchange or the Nasdaq Global Market or the Nasdaq Capital Market (as
applicable, “Nasdaq”), then the closing or last sale price, respectively, reported for the
last Business Day immediately preceding the Determination Date;
(b) If the Company’s Common Stock is not traded on an exchange as set forth in clause (a)
above, but is traded on the over-the-counter market, then the average of the closing bid and ask
prices reported for the last Business Day immediately preceding the Determination Date;
(c) Except as provided in clause (d) below, if the Company’s Common Stock is not publicly
traded, then as the Holder and the Company agree, or in the absence of such an agreement, by
arbitration in accordance with the rules then in effect of the American Arbitration Association,
before a single arbitrator to be chosen mutually by the Holder and the Company from a panel of
persons qualified by education and training to pass on the matter to be decided; or
(d) If the Determination Date is the date of a liquidation, dissolution or winding up, or any
event deemed to be a liquidation, dissolution or winding up pursuant to the Company’s charter, then
all amounts to be payable per share to holders of the Common Stock pursuant to the charter in the
event of such liquidation, dissolution or winding up, plus all other amounts to be payable per
share in respect of the Common Stock in liquidation under the charter, assuming for the purposes of
this clause (d) that all of the shares of Common Stock then issuable upon exercise of all of the
Warrants are outstanding at the Determination Date.
1.5. Company Acknowledgment. The Company will, at the time of the exercise of the
Warrant, upon the request of the Holder hereof, acknowledge in writing its continuing obligation to
afford to such Holder any rights to which such Holder shall continue to be entitled after such
exercise in accordance with the provisions of this Warrant. If the Holder shall fail to make any
such request, such failure shall not affect the continuing obligation of the Company to afford to
such Holder any such rights.
1.6. Trustee for Warrant Holders. In the event that a bank or trust company shall have
been appointed as Trustee for the Holder of the Warrants pursuant to Section 2.3, such Trustee
shall have all the powers and duties of a warrant agent (as hereinafter described) and shall
accept, in its own name for the account of the Company or such successor person as may be entitled
thereto, all amounts otherwise payable to the Company or such successor, as the case may be, on
exercise of this Warrant pursuant to this Section 1.6.
1.7 Delivery of Stock Certificates, etc. on Exercise. The Company agrees that the
shares of Common Stock purchased upon exercise of this Warrant shall be deemed to be issued to the
Holder hereof as the record owner of such shares as of the close of business on the date on which
this Warrant shall have been surrendered and payment made for such shares as aforesaid. As soon as
practicable after the exercise of this Warrant in full or in part, and in any event within ten (10)
Business Days thereafter, the Company at its expense (including the payment by it of any applicable
issue taxes) will cause to be issued in the name of and delivered to the Holder hereof, or as such
Holder (upon
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payment by such Holder of any applicable transfer taxes) may direct in compliance with
applicable securities laws, a certificate or certificates for the number of duly and validly
issued, fully paid and nonassessable shares of Common Stock (or Other Securities) to which such
Holder shall be entitled on such exercise, plus, in lieu of any fractional share to which such
Holder would otherwise be entitled, cash equal to such fraction multiplied by the then Fair Market
Value of one full share of Common Stock, together with any other stock or other securities and
property (including cash, where applicable) to which such Holder is entitled upon such exercise
pursuant to Section 1 or otherwise.
1.8 This Warrant may also be exercised in whole or in part by means of a “cashless exercise”
by tendering this Warrant to the Company to receive a number of shares of Common Stock equal in
Market Value to the difference between the Market Value of the shares of Common Stock issuable upon
such exercise of this Warrant and the total cash exercise price of that part of the Warrant being
exercised. “Market Value” for this purpose shall be the closing price of the Common Stock
as reported by Nasdaq or, if not available, by Bloomberg L.P. on the date of such cashless
exercise. Certificates for shares purchased hereunder shall be delivered to the Holder hereof
within ten (10) Business Days after the date on which this Warrant shall have been exercised as
aforesaid. This Warrant shall be deemed to have been exercised and such certificate or
certificates shall be deemed to have been issued, and the Holder or any other person so designated
to be named therein shall be deemed to have become a the Holder of record of such shares for all
purposes, as of the date the Warrant has been exercised by payment to the Company of the Exercise
Price and all taxes required to be paid by the Holder, if any, prior to the issuance of such
shares, have been paid. If this Warrant shall have been exercised in part, the Company shall, at
the time of delivery of the certificate or certificates representing the Warrant Shares, deliver to
the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased shares of
Common Stock called for by this Warrant, which new Warrant shall in all other respects be identical
to this Warrant.
2. Adjustment of Exercise Price and Number of Warrant Shares. The Exercise Price in
effect and the number and kind of securities purchasable upon the exercise of this Warrant shall be
subject to adjustment from time to time upon the happening of certain events as provided in this
Section 2.
2.1. Reorganization, Consolidation, Merger, etc. In case at any time or from time to
time, the Company shall (a) effect a reorganization, (b) consolidate with or merge into any other
person or (c) transfer all or substantially all of its properties or assets to any other person
under any plan or arrangement contemplating the dissolution of the Company, then, in each such
case, as a condition to the consummation of such a transaction, proper and adequate provision shall
be made by the Company whereby the Holder of this Warrant, on the exercise hereof as provided in
Section 1, at any time after the consummation of such reorganization, consolidation or merger or
the effective date of such dissolution, as the case may be, shall receive, in lieu of the Common
Stock (or Other Securities) issuable on such exercise prior to such consummation or such effective
date, the stock and other securities and property (including cash) to which such Holder would have
been entitled upon such consummation or in connection with such dissolution, as the case may be, if
such Holder had so exercised this Warrant, immediately prior thereto, all subject to further
adjustment thereafter as provided in Section 2.
2.2 Dividends, Splits, Reclassifications Etc. In the event of changes in the
outstanding Common Stock of the Company by reason of share dividends, splits, recapitalizations,
reclassifications, combinations or exchanges of shares, reorganizations, liquidations, or the like,
the number and class of the Warrant Shares available under the Warrant in the aggregate and the
Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for
the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would
have owned had the Warrant been exercised prior to the event and had the Holder continued to hold
such shares
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until after the event requiring adjustment. The form of this Warrant need not be changed
because of any adjustment in the number of the Warrant Shares subject to this Warrant.
2.3. Dissolution. In the event of any dissolution of the Company following the
transfer of all or substantially all of its properties or assets, the Company, prior to such
dissolution, shall at its expense deliver or cause to be delivered the stock and other securities
and property (including cash, where applicable) receivable by the Holder of the Warrants after the
effective date of such dissolution pursuant to this Section 2 to a bank or trust company (a
“Trustee”) having its principal office in New York City, New York, as trustee for the
Holder of the Warrants.
2.4. Continuation of Terms. Upon any reorganization, consolidation, merger or
transfer (and any dissolution following any transfer) referred to in this Section 2, this Warrant
shall continue in full force and effect and the terms hereof shall be applicable to the Other
Securities and property receivable on the exercise of this Warrant after the consummation of such
reorganization, consolidation or merger or the effective date of dissolution following any such
transfer, as the case may be, and shall be binding upon the issuer of any Other Securities,
including, in the case of any such transfer, the person acquiring all or substantially all of the
properties or assets of the Company, whether or not such person shall have expressly assumed the
terms of this Warrant as provided herein. In the event this Warrant does not continue in full
force and effect after the consummation of the transaction described in this Section 2, then only
in such event will the Company’s securities and property (including cash, where applicable)
receivable by the Holder of the Warrants be delivered to the Trustee as contemplated by Section
2.3.
3. Certificate as to Adjustments. In each case of any adjustment or readjustment in
the shares of Common Stock (or Other Securities) issuable on the exercise of the Warrants, the
Company will cause its Chief Financial Officer or other appropriate designee to compute such
adjustment or readjustment in accordance with the terms of the Warrant and prepare a certificate
setting forth such adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based, including a statement of (a) the consideration received or
receivable by the Company for any additional shares of Common Stock (or Other Securities) issued or
sold or deemed to have been issued or sold, (b) the number of shares of Common Stock (or Other
Securities) outstanding or deemed to be outstanding, and (c) the Exercise Price and the number of
shares of Common Stock to be received upon exercise of this Warrant, in effect immediately prior to
such adjustment or readjustment and as adjusted or readjusted as provided in this Warrant. The
Company will forthwith mail a copy of each such certificate to the Holder of the Warrant and any
Warrant Agent of the Company that may be appointed pursuant to Section 8 hereof.
4. Reservation of Stock, etc. Issuable on Exercise of Warrant. The Company will at
all times reserve and keep available, solely for issuance and delivery on the exercise of the
Warrants, all shares of Common Stock (or Other Securities) from time to time issuable on the
exercise of the Warrant.
5. Assignment; Exchange of Warrant. Subject to compliance with all applicable
securities laws, this Warrant, and all rights hereunder are transferable or assignable only with
prior written consent of the Company, which consent shall not be unreasonably withheld;
provided, however, that any proposed transferee shall execute and deliver to the
Company a voting agreement between such proposed transferee and the Company substantially in the
form of the Voting Agreement. In the event the Company consents to such assignment, on the
surrender for exchange of this Warrant, with endorsement of the registered holder of this Warrant
proposing to effect the assignment (a “Transferor”) in the form of Exhibit B
attached hereto (the “Transferor Endorsement Form”) and together with an opinion of counsel
reasonably satisfactory to the Company that the transfer of this Warrant will be in compliance with
all applicable securities laws, the Company at its expense, once only, but with payment by the
Transferor of any
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applicable transfer taxes, will issue and deliver to or on the order of the Transferor thereof
a new Warrant or Warrants of like tenor, in the name of the Transferor and/or the transferee(s)
specified in such Transferor Endorsement Form (each, a “Transferee”), calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock called for on the
face or faces of the Warrant so surrendered by the Transferor. No such transfers shall result in a
public distribution of the Warrant.
6. Replacement of Warrant. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such
loss, theft or destruction of this Warrant, on delivery of an indemnity agreement or security
reasonably satisfactory in form and amount to the Company or, in the case of any such mutilation,
on surrender and cancellation of this Warrant, the Company at its expense, once only, will execute
and deliver, in lieu thereof, a new Warrant of like tenor.
7. No Shareholder Rights. This Warrant shall not entitle the Holder hereof to any
voting rights or other rights as a shareholder of the Company.
8. Warrant Agent. The Company may, by written notice to the Holder of the Warrant,
appoint an agent (a “Warrant Agent”) for the purpose of issuing Common Stock (or Other
Securities) on the exercise of this Warrant pursuant to Section 1, exchanging this Warrant pursuant
to Section 6, and replacing this Warrant pursuant to Section 6, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be, shall be made at such
office by such Warrant Agent.
9. Transfer on the Company’s Books. Until this Warrant is transferred on the books of
the Company, the Company may treat the registered holder hereof as the absolute owner hereof for
all purposes, notwithstanding any notice to the contrary.
10. Representations and Covenants of Holder. The Holder represents and warrants that
it is acquiring the Warrant and the Warrant Shares solely for its account for investment and not
with a view to or for sale or distribution of said Warrant or Warrant Shares or any part thereof.
The Holder also represents that the entire legal and beneficial interests of the Warrant and
Warrant Shares the Holder is acquiring are being acquired for, and will be held for, the Holder’s
account only. The Holder further represents and warrants as follows:
(a) Securities Are Not Registered.
(i) The Holder acknowledges and understands that the Warrant and the Warrant Shares have not
been registered under the Securities Act, on the basis that no distribution or public offering of
the shares of the Company is to be effected. The Holder realizes that the basis for the exemption
may not be present if, notwithstanding its representations, the Holder has a present intention of
acquiring the securities for a fixed or determinable period in the future, selling (in connection
with a distribution or otherwise), granting any participation in, or otherwise distributing the
securities. The Holder has no such present intention.
(ii) The Holder of this Warrant recognizes that the Warrant and the Warrant Shares must be
held indefinitely, and that no sale, transfer, assignment, hypothecation or other disposition of
this Warrant or the Warrant Shares shall be made in the absence of (A) an effective registration
statement under the Securities Act as to this Warrant or the Warrant Shares and the registration or
qualification of this Warrant or the Warrant Shares under any applicable state securities laws is
then in effect or (B) an opinion of counsel satisfactory to the Company to the effect that such
registration or qualification is not required in reliance on an exemption therefrom.
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(iii) The Holder is aware that neither the Warrant nor the Warrant Shares may be sold pursuant
to Rule 144 adopted under the Securities Act unless certain conditions are met, including, among
other things, the existence of a public market for the shares, the availability of certain current
public information about the Company, the resale following the required holding period under Rule
144 and the number of shares being sold during any three month period not exceeding specified
limitations. So long as the Holder owns any Warrant Shares, the Company agrees to furnish such
Holder forthwith upon request: a written statement by the Company as to its compliance with Rule
144, a copy of the most recent annual or quarterly report of the Company filed with the Commission,
and such other reports and documents as a Holder may reasonably request in availing itself of any
rule or regulation of the Commission allowing it to sell any such securities without registration.
(b) Legended Shares. The Holder understands and agrees that all certificates
or other instruments evidencing the Common Stock to be issued in connection with the exercise of
this Warrant will bear legends as provided herein, one of which shall be substantially in the form
set forth below:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THESE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW
TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION HEREOF. THESE
SECURITIES MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR ASSIGNED EXCEPT
IN ACCORDANCE WITH THE SECURITIES ACT AND ALL OTHER APPLICABLE STATE
SECURITIES LAWS.”
(c) Accredited Investor Status. The Holder is an “accredited
investor” as defined in Regulation D promulgated under the Securities Act.
11. Registration Rights. The Company shall afford the Holder certain registration
rights with respect to the Warrant Shares in accordance with the terms and subject to the
conditions of that certain Registration Rights Agreement dated as of even date herewith, between
the Company and Athlete’s Foot Marketing Associates, LLC.
12. Voting Agreement. It shall be a condition precedent to the Holder’s receipt of
this Warrant that the Holder execute and deliver to the Company the Voting Agreement with respect
to the voting of the Warrant Shares, in the form and substance satisfactory to the Company and
attached hereto as Exhibit C. The Holder understands and hereby agrees that all
certificates evidencing the shares of Common Stock to be issued in connection with the exercise of
this Warrant, in addition to the legend set forth above, will bear legend(s) substantially in the
form set forth in the Voting Agreement.
13. Securityholder Questionnaire. It shall be a condition precedent to the Holder’s
receipt of this Warrant that the Holder execute and deliver to the Company the Securityholder
Questionnaire with respect to the Warrant Shares, in the form and substance satisfactory to the
Company and attached hereto as Exhibit D.
14. Notices. All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing and, unless otherwise specified
herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by hand
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delivery, telegram, or facsimile, addressed as set forth below or to such other address as
such party shall have specified most recently by written notice. Any notice or other communication
required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or
delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine,
at the address or number designated below (if delivered on a Business Day during normal business
hours where such notice is to be received), or the first Business Day following such delivery (if
delivered other than on a Business Day during normal business hours where such notice is to be
received) or (b) on the second Business Day following the date of mailing by express courier
service, fully prepaid, addressed to such address, or upon actual receipt of such mailing,
whichever shall first occur. The addresses for such communications shall be: (i) if to the Company
to: Aether Holdings, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
Attn. Xxxxx Xxxxx, facsimile: (000) 000-0000, with an additional copy (which shall not constitute
notice) by facsimile only to: Xxxxxxx Xxxxxx, Esq., Xxxxx & XxXxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, XX 00000, facsimile: (000) 000-0000, and (ii) if to the Holder, to the address
and facsimile number listed on the first paragraph of this Warrant, with an additional copy by
facsimile only to: Xxxxxx Xxxxxx Xxxxxxx LLP, 000 00xx Xx., XX, Xxxxx 0000, Xxxxxxx, XX
00000, Attn: Cleburne X. Xxxxxxx III, Esq., facsimile: (000) 000-0000.
15. Descriptive Headings.
The description headings of the several sections and paragraphs of this Warrant are
inserted for convenience only, do not constitute a part of this Warrant, and shall not limit or
otherwise affect any of the terms hereof.
16. Governing Law; Dispute Resolution. This Warrant shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the laws of the State of
New York, without regard to its conflicts of law principles. The Company and the Holder hereby
agree that any dispute arising out of or relating to this Warrant, or any action for recognition or
enforcement of any judgment, shall be adjudicated by any New York State court or federal court of
the United States sitting in New York City, and any appellate court from any thereof.
17. Miscellaneous. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or enforceability of
any other provision.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first written above.
| AETHER HOLDINGS, INC. |
||||
| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
Witness:
/s/
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Exhibit A
FORM OF SUBSCRIPTION
(to be signed only on exercise of Warrant)
(to be signed only on exercise of Warrant)
TO: AETHER HOLDINGS, INC.
(1) ¨ Payment. The undersigned, pursuant to the provisions set forth in the attached
Warrant (No. ), hereby irrevocably elects to purchase shares of Common Stock of
Aether Holdings, Inc. (the “Company”) covered by such Warrant, and tenders herewith payment
of the full exercise price for such shares at the price provided for, and subject to the adjustment
as provided in, such Warrant, together with all applicable transfer taxes, if any. Such payment of
the full exercise price in the amount of $ is in lawful money of the United States.
¨ Cashless Exercise. The undersigned hereby elects to purchase shares
of Common Stock of the Company pursuant to the terms of the cashless exercise provisions set forth
in Section 1.8 of the attached Warrant, and shall tender payment of all applicable transfer taxes,
if any.
(2) The undersigned requests that the certificates for said shares of Common Stock be issued in the
name of, and delivered to
whose address is
whose address is
The undersigned represents and warrants that all offers and sales by the undersigned of the
securities issuable upon exercise of the within Warrant shall be made pursuant to registration of
the Common Stock under the Securities Act of 1933, as amended (the “Securities Act”), or
pursuant to an exemption from registration under the Securities Act.
Dated:
(Signature must conform to name of holder as
specified on the face of the Warrant)
(Address)
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Exhibit B
FORM OF TRANSFEROR ENDORSEMENT
(To be signed only on transfer of Warrant)
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers unto the person(s)
named below under the heading “Transferees” the right represented by the within Warrant to purchase
the percentage and number of shares of Common Stock of AETHER HOLDINGS, INC. to which the within
Warrant relates specified under the headings “Percentage Transferred” and “Number Transferred,”
respectively, opposite the name(s) of such person(s) and appoints each such person Attorney to
transfer its respective right on the books of AETHER HOLDINGS, INC. with full power of substitution
in the premises.
| Transferees | Percentage Transferred | Number Transferred | ||||||
Dated: ,
Signed in the presence of:
(Name)
ACCEPTED AND AGREED:
[TRANSFEREE]
[TRANSFEREE]
(Name)
(Signature must conform to name of
holder as specified on the face of the
warrant)
(address)
(address)
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Exhibit C
Voting Agreement
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Exhibit D
Securityholder Questionnaire
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