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 .
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Right to
Purchase 500,000 shares of Common Stock of Aether Holdings, Inc.
(subject to adjustment as provided herein)
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COMMON STOCK PURCHASE
WARRANT
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Warrant No.
W00000173
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Issue Date: November 7,
2006
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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.
1.1.
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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