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COMMON STOCK PURCHASE WARRANT

Warrant Agreement

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This Warrant Agreement involves

NEXCEN BRANDS, INC. | AETHER HOLDINGS, INC.

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Title: COMMON STOCK PURCHASE WARRANT
Governing Law: New York     Date: 11/14/2006
Industry: FSMISC     Law Firm: Baker & McKenzie LLP; Arnall Golden Gregory LLP     Sector: FINANC

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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 Robert J. Corliss 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, Robert J. Corliss and certain other parties thereto, Robert J. Corliss, residing at 5052 Legends Drive, Braselton, GA 30517, 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


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