-----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, L+VuVuklYHfU4AbQdsm4oLbSgKZCcZzQDOF0mePuw1J53hzJx/RqO+Hagu7K5eJ3 DgmG1x9f0bTYSlXqdT5D7g== 0000950133-01-501816.txt : 20010710 0000950133-01-501816.hdr.sgml : 20010710 ACCESSION NUMBER: 0000950133-01-501816 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20010709 GROUP MEMBERS: DAVID S. OROS GROUP MEMBERS: NEXGEN TECHNOLOGIES LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AETHER SYSTEMS INC CENTRAL INDEX KEY: 0001093434 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 522186634 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-58205 FILM NUMBER: 1676335 BUSINESS ADDRESS: STREET 1: 11460 CRONRIDGE DR CITY: OWINGS MILLS STATE: MD ZIP: 21117 BUSINESS PHONE: 4106546400 MAIL ADDRESS: STREET 1: 11460 CRONRIDGE DRIVE CITY: OWINGS MILLS STATE: MD ZIP: 21117 FORMER COMPANY: FORMER CONFORMED NAME: AETHER SYSTEMS LLC DATE OF NAME CHANGE: 19991029 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: NEXGEN TECHNOLOGIES LLC CENTRAL INDEX KEY: 0001110768 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 179802074 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 11460 CRONRIDGE DRIVE CITY: OWINGS MILLS STATE: MD ZIP: 21117 BUSINESS PHONE: 4106546400 MAIL ADDRESS: STREET 1: 11460 CRONRIDGE DRIVE CITY: OWINGS MILLS STATE: MD ZIP: 21117 SC 13D 1 w51206sc13d.txt SCHEDULE 13D 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) AETHER SYSTEMS, INC. (Name of Issuer) Common Stock, par value $.01 per share (Title of Class of Securities) 00808v105 (CUSIP Number) David S. Oros Roger J. Patterson, Esquire Aether Systems, Inc. Wilmer, Cutler & Pickering 11460 Cronridge Drive 2445 M Street, N.W. Owings Mills, MD 21117 Washington, D.C. 20037 410-654-6400 202-663-6363 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) June 27, 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 that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box [_] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 (the "Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). (Continued on following pages) 2 SCHEDULE 13D
- --------------------------------------------------- ------------------------------- ------------------------------------ CUSIP NO. 00808V105 PAGE 2 OF 7 PAGES --------- ----------------- - --------------------------------------------------- ------------------------------- ------------------------------------ - ---------- ------------------------------------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS David S. Oros I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Not Applicable (natural person) - ---------- ------------------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ x ] - ---------- ------------------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - ---------- ------------------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* PF - ---------- ------------------------------------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ---------- ------------------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - ---------- ------------------------------------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 1,967,500 BENEFICIALLY -------- ----------------------------------------------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH 3,326,757 REPORTING PERSON -------- ----------------------------------------------------------------------------------- WITH 9 SOLE DISPOSITIVE POWER 1,967,500 -------- ----------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 3,326,757 - ---------- ------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,294,257 - ---------- ------------------------------------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ---------- ------------------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 12.8% - ---------- ------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - ---------- -------------------------------------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. 3 SCHEDULE 13D
- ---------- ------------------------------------------------------------------------------------------------------------- CUSIP NO. 00808V105 PAGE 3 OF 7 PAGES --------- ----------------- - --------------------------------------------------- ------------------------------- ------------------------------------ - ---------- ------------------------------------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS NexGen Technologies, L.L.C. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) 17-9802074 - ---------- ------------------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ x ] - ---------- ------------------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - ---------- ------------------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* PF - ---------- ------------------------------------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ---------- ------------------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Maryland - ---------- ------------------------------------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 0 BENEFICIALLY OWNED BY -------- ----------------------------------------------------------------------------------- EACH 8 SHARED VOTING POWER REPORTING 9,833,660 PERSON WITH -------- ----------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 3,326,757 -------- ----------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - ---------- ------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,833,660 - ---------- ------------------------------------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ---------- ------------------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 24.2% - ---------- ------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - ---------- -------------------------------------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. 4 Item 1. Security and Issuer. This Schedule 13D relates to common shares, $.01 par value (the "Shares") of Aether Systems, Inc., a Delaware corporation ("Aether" or the "Company"). Aether's principal executive offices are located at 11460 Cronridge Drive, Owings Mills, MD 21117. Item 2. Identity and Background. David S. Oros and NexGen Technologies, L.L.C. are filing this Schedule 13D. Mr. Oros serves as Aether's Chairman of the Board and Chief Executive Officer. Aether provides technologies that enable businesses to extend their data and commercial transactions to wireless and mobile handheld devices. Aether's principal executive offices are located at 11460 Cronridge Drive, Owings Mills, MD 21117. Mr. Oros is a United States citizen. NexGen Technologies, L.L.C., a limited liability company organized under the laws of the State of Maryland ("NexGen"), maintains its principal office at 11460 Cronridge Drive, Owings Mills, MD 21117 and invests in companies that develop, market, license, sell and support wireless integration services and wireless customer services. During the last five years, neither Mr. Oros nor NexGen have been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) nor have either of them 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. Item 3. Source and Amount of Funds or Other Consideration. Mr. Oros used an aggregate of $8,426,305.50 of his personal funds to make all of the purchases that necessitated this filing. Item 4. Purpose of Transaction. Mr. Oros made the purchases for the purpose of investment in the ordinary course of business and to maintain and support the control he exercises as (together with NexGen) the largest single stockholder of Aether and as a director and Chairman and Chief Executive Officer of Aether. Except as set forth below, Mr. Oros does not currently have any plans or proposals which relate to, or could result in, any of the following: (a) The acquisition by any person of additional securities of the issuer, or the disposition of securities of the issuer; (b) An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the issuer or any of its subsidiaries; (c) A sale or transfer of a material amount of assets of the issuer or any of its subsidiaries; (d) Any change in the present board of directors or management of the issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e) Any material change in the present capitalization or dividend policy of the issuer; (f) Any other material change in the issuer's business or corporate structure; Page 4 of 7 pages 5 (g) Changes in the issuer's charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the issuer by any person; (h) Causing a class of securities of the issuer to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) A class of equity securities of the issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or (j) Any action similar to any of those enumerated above. Mr. Oros may, at any time and from time to time, review or reconsider his position and/or change his purpose and/or formulate plans or proposals with respect thereto. Consistent with his investment purpose and his positions as Aether's largest stockholder and Chairman of the Board and Chief Executive Officer, Mr. Oros has explored and may in the future actively explore the desirability of any of the transactions or actions described above. In exploring such transactions, Mr. Oros has engaged and will in the future engage in communications with other stockholders, other officers and other directors (and with the Board of Directors) and with third parties regarding the Company. In the course of these communications, Mr. Oros has solicited and may in the future solicit and obtain expressions of interest and discuss terms of potential transactions and may reach preliminary agreements on possible terms of any such transaction. Although Mr. Oros does not currently have any plans or proposals to dispose of any or all of the Shares he owns or to acquire additional Shares, consistent with his purposes in holding the shares, at any time and from time to time he may acquire additional Shares or dispose of any or all of his Shares based upon his ongoing evaluation of investment in the Shares, prevailing market conditions, other investment opportunities, his liquidity requirements and/or other investment considerations. Item 5. Interest in Securities of the Issuer. (a) and (b) Rows (11) and (13) of the cover pages to this Schedule 13D are hereby incorporated by reference. Mr. Oros beneficially owns an aggregate of 5,294,257 Shares, constituting 12.8% of the total outstanding Shares. The 5,294,257 Shares beneficially owned by Mr. Oros include immediately exercisable warrants to purchase 812,500 Shares held by Mr. Oros and 105,000 Shares subject to restrictions on transfer and subject to forfeiture in certain circumstances pursuant to an agreement with Aether. Mr. Oros has the sole power to direct the voting and disposition of 1,862,500 Shares (including warrants to purchase 812,500 Shares) beneficially owned by him. Mr. Oros has the sole power to direct the voting and disposition of 105,000 Shares subject to restrictions on voting and disposition pursuant to an agreement with Aether. By virtue of his position as managing member of NexGen, Mr. Oros has the shared power to direct the voting and disposition of 3,326,757 Shares held by NexGen. NexGen beneficially owns an aggregate of 9,833,660 Shares, constituting 24.2% of the total outstanding Shares. NexGen has the sole power to direct the disposition of 3,326,757 shares. By virtue of a voting agreement with respect to the election of directors among NexGen, Telcom-ATI Investors, L.L.C., a limited liability company organized under the laws of the State of Delaware ("Telcom"), and Reuters Marketclip Holdings Sarl, a limited liability company organized under the laws of Switzerland ("Reuters"), NexGen has the shared power to direct the voting of the 3,326,757 shares it holds plus an aggregate of 6,506,903 Shares NexGen understands are held by Telcom and Reuters. (c) Exhibit A sets forth all transactions in the Shares effected by Mr. Oros during the past 60 days. All of these transactions constitute purchases made on the NASDAQ National Market. NexGen has not engaged in any transactions in the Shares in the past 60 days. (d) Not applicable. (e) Not applicable. Page 5 of 7 pages 6 Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. NexGen, Telcom and Reuters entered into a Stockholders Voting Agreement dated October 15, 1999 (as amended, the "Voting Agreement") which requires these parties to vote to elect to the board of directors two persons named by each of NexGen and Telcom, two persons named jointly by NexGen and Telcom and one person named by Reuters. The Voting Agreement will terminate upon the earliest of (1) a transaction in which all of the voting power of the Company is disposed of or (2) the written consent of the remaining parties to the Voting Agreement. Parties to the Voting Agreement can lose their right to designate representatives on the Board of Directors or cease to remain parties to the Voting Agreement altogether if their ownership interests in Aether drop below certain levels specified in the Voting Agreement. As a result of a decline in the number of Shares owned by NexGen, NexGen currently has the right to name only one person to be elected to the board of directors. NexGen, Telcom and Reuters were among the parties that entered into an Amended and Restated Registration Rights Agreement with Aether dated March 3, 2000 (the "Registration Rights Agreement") that entitles these parties to an aggregate of three demand registrations at any time after October 27, 2000, and at the request of these parties, requires Aether to include in any registration statement for the Company's own account or the account of any other stockholder, the shares of common stock held by the requesting parties subject to limitations set forth in the Registration Rights Agreement. The Registration Rights Agreement also requires Aether to file a shelf registration statement covering the sale of all shares held by parties to the Voting Agreement from time to time. Following Aether's acquisition of Riverbed, the former shareholders of Riverbed became parties to this agreement and were given the same rights as the original parties to the contract. Mr. Oros holds 105,000 Shares subject to restrictions on voting and transfer and which are subject to forfeiture pursuant to an agreement with Aether. The agreement provides that the restrictions will lapse as to 10% of the Shares on October 1, 2001 and as to 30% each year thereafter. The agreement provides that Mr. Oros may not transfer the Shares until the restrictions lapse, and that Mr. Oros will forfeit the Shares as to which the restrictions have not lapsed if he terminates his employment with the issuer. Item 7. Material to be Filed as Exhibits. Exhibit A - Schedule of Purchases Exhibit B - Stockholders Voting Agreement dated as of October 19, 1999, as amended March 6, 2000 Exhibit C - Amended and Restated Registration Rights Agreement dated as of March 3, 2000 (incorporated by reference to the Registration Statement (File No. 333-85697) on Form S-1 filed with the SEC on October 20, 1999, as amended). Exhibit D - Agreement with respect to Restricted Shares Exhibit E - Joint Filing Agreement Page 6 of 7 pages 7 SIGNATURES After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: July 6, 2001 /s/ David S. Oros ------------------------------ David S. Oros NexGen Technologies, L.L.C. By: /s/ David S. Oros ------------------------- David S. Oros Its: Managing Member Page 7 of 7 pages EX-99.A 2 w51206ex99-a.txt SCHEDULE OF PURCHASES 1 EXHIBIT A SCHEDULE OF PURCHASES
Date Shares Price Aggregate Cost - ---- ------ ----- -------------- 6-20-01 200,000 $8.33 $1,660,000.00 6-21-01 75,000 8.0133 660,997.50 6-22-01 240,000 8.0992 1,943,808.00 6-25-01 10,000 8.10 81,000.00 6-26-01 110,000 7.6977 846,747.00 6-27-01 65,000 7.9062 513,903.00 6-27-01 10,000 7.85 78,500.00 6-27-01 15,000 7.85 117,750.00 6-27-01 25,000 7.85 196,250.00 6-27-01 25,000 7.85 196,250.00 6-27-01 25,000 7.84 196,000.00 6-27-01 5,000 7.75 38,750.00 6-27-01 15,000 7.85 117,750.00 6-27-01 10,000 7.84 78,400.00 6-27-01 10,000 7.88 78,800.00 6-27-01 10,000 7.89 78,900.00 6-27-01 50,000 7.97 398,500.00 6-27-01 100,000 7.99 799,000.00 6-27-01 50,000 7.98 399,000.00 ------- ---------- TOTAL 1,050,000 $8,426,305.50
EX-99.B 3 w51206ex99-b.txt STOCKHOLDERS VOTING AGREEMENT 1 STOCKHOLDERS VOTING AGREEMENT THIS STOCKHOLDERS VOTING AGREEMENT (this "Agreement") dated as of October 15, 1999 (the "Effective Date"), is by and among NexGen Technologies, L.L.C., a Maryland limited liability company ("NexGen"), 3Com Corporation, a Delaware corporation ("3Com"), Telcom-ATI Investors, L.L.C., a Delaware limited liability company ("Telcom") and Reuters MarketClip Holdings Sarl, a limited liability company formed under the laws of Switzerland ("Reuters"). Each of NexGen, 3Com, Telcom and Reuters is referred to as a "Voting Party," and collectively they are referred to as "Voting Parties." Capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the form of Certificate of Incorporation of the Company attached as Exhibit A to the Merger Agreement, which will be effective upon the effectiveness of the Merger (the "Certificate of Incorporation"). RECITALS WHEREAS, the Voting Parties, Pyramid Ventures, Inc., a Delaware Corporation ("Pyramid"), Transettlements, Inc., a Georgia corporation ("Transettlements") Mark D. Ein and J. Carter Beese, Jr. (the Voting Parties, Pyramid, Transettlements, Ein and Beese, together the "Members") are parties to the Amended and Restated Limited Liability Company Agreement, dated as of October 29, 1998, as amended (the "LLC Agreement"), of Aether Technologies International, L.L.C., a Delaware limited liability company (the "LLC"); WHEREAS, the Members entered into a Plan of Conversion, dated as of October 15, 1999 (the "Plan of Conversion"), which provides that immediately prior to the closing of the Company's initial public offering of Common Stock (the "IPO") (i) the LLC shall be converted into a corporation by the Members contributing their interests in the LLC (the "Contributions") to the Company in exchange for shares of common stock, par value $.01, in the Corporation ("Common Stock") pursuant to the terms and conditions of an Agreement and Plan of Contribution in the form attached as Exhibit A to the Plan of Conversion, and (ii) immediately thereafter the LLC will be merged (the "Merger") with and into the Company pursuant to an Agreement and Plan of Merger in the form attached as Exhibit B to the Plan of Conversion; WHEREAS, as a result of the Contributions and Merger, each Voting Party will beneficially own the number of shares of Common Stock set forth opposite such Voting Party's name on Exhibit A to this Agreement; WHEREAS, the LLC Agreement contemplates, and the parties hereto have agreed, that following conversion of the LLC to the Company in accordance with the Plan of Conversion, certain rights, privileges and obligations set forth in the LLC Agreement with respect to the ownership and governance of the LLC will, to the extent and upon the terms and subject to the conditions set forth herein, arise with respect to the ownership and governance of the Company. 2 AGREEMENT NOW, THEREFORE, in consideration of the mutual promises herein contained, and other consideration, the receipt and adequacy of which hereby is acknowledged, the parties agree as follows: 1. Board of Directors. This Agreement shall not become effective unless and until the Merger is completed. From and after the date of the Merger and until the provisions of this Section 1 cease to be effective, each of the Voting Parties shall vote, or cause the vote of, all shares of Common Stock and other voting securities of the Company over which such Voting Party has voting control, and will take all other necessary or desirable actions within its control (whether in its capacity as a stockholder or officer of the Company or otherwise) in order to ensure that the size of the Board of Directors (the "Board") shall be no more than ten (10) and no less than seven (7) and to cause the election to the Board of: (a) Two (2) representatives designated by NexGen, who initially shall be David Oros and Mark Ein; (b) Two (2) representatives designated by Telcom, who initially shall be Rahul Prakash and Rajendra Singh; (c) One (1) representative designated by 3Com, who initially shall be Janice Roberts; (d) One (1) representative designated by Reuters, who initially shall be Devin Wenig; and (e) Commencing on the date of the first annual meeting of Stockholders of the Company, if the Board of Directors consists of up to nine (9) members, (1) representative jointly designated by NexGen and Telcom; and if the Board of Directors consists of at least ten (10) or eleven (11) members, two (2) representatives jointly designated by NexGen and Telcom. 2. Vacancies. In the event that any director who is designated by a Voting Party as provided in Section 1 above for any reason ceases to serve as a member of the Board during his or her term of office, the parties hereto shall cause the resulting vacancy to be filled by a representative designated as provided in Section 1 by the respective entity who designated the vacating representative. Each of the Voting Parties shall attend in person or by duly executed proxy, and vote its shares of the voting stock of the Company in accordance with this Agreement at, each annual meeting of the stockholders of the Company and each special meeting of the stockholders of the Company involving the election of directors of the Company. 3. Application of Agreement to After-Acquired-Shares. All of the provisions of Section 1 shall apply to all voting securities issued by the Company that are held by the Voting Parties, whether the voting securities are issued by the Company before or after the Effective 2 3 Date, and all voting securities issued as a replacement for the Shares or with respect to the Shares as a result of any stock dividend, stock split or other similar event. 4. Nontransferability. Each party hereby agrees that the obligations and covenants contained herein are unique to the original parties hereto and that no party may donate, transfer, sell, assign, pledge, hypothecate or otherwise dispose (other than to an agent, wholly-owned subsidiary or other person or entity that such party controls, is controlled by, or is under common control with, either directly or indirectly (an "Affiliate")), any of its rights and obligations under this Agreement. Any transfer not effected in accordance with this Section 4 shall be null and void. 5. No Heightened Duties. Each party hereby acknowledges and agrees that no fiduciary duty, duty of care, duty of loyalty or other heightened duty shall be created or imposed upon any party to any other party, the Company or any other stockholder of the Company, by reason of this Agreement and/or any right or obligation hereunder. 6. Amendments; Waivers. Any term hereof may be amended or waived only by the written consent of each of the Voting Parties who, subject to Section 13, is still a party to this Agreement. Any amendment or waiver not effected in accordance with this Section 6 shall be null and void and non-binding upon the Voting Parties and their respective successors and assigns. No waivers of any breach of this Agreement extended by any party hereto to any other party shall be construed as a waiver of any rights or remedies of such party or any other party hereto with respect to any subsequent breach. 7. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed delivered on the date of delivery, when delivered personally or by overnight courier or sent by telegram or confirmed fax, or forty-eight (48) hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, to the following addresses: (i) at the addresses set forth on such parties signature page, or (ii) at such other address as such Voting Parties shall have furnished to the Company in writing. 8. Severability. If one or more provisions of or obligations under this Agreement are held to be invalid, illegal, or unenforceable under applicable law, then such provision or obligation shall be excluded from this Agreement, and the remaining provisions of and obligations under this Agreement shall be enforceable in full in accordance with their terms. 9. Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law. 10. Counterparts. This Agreement may be executed by facsimile and in two or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one agreement. 3 4 11. Successors and Assigns. Subject to Section 4 above, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. 12. Specific Performance. The parties hereby acknowledge that it is impossible to measure in money the damages which will accrue to a party hereto or to its heirs, personal representatives, or assignees by reason of a party's failure to perform its obligations under this Agreement and therefore agree that, in addition to and without limiting any remedies available at law, each of the parties hereto shall have full equitable remedies available to such party. 13. Termination. (a) This Agreement shall terminate and the obligations of the Voting Parties to vote their respective shares of voting securities shall cease upon the earlier to occur of: (i) termination of the Merger Agreement in accordance with its terms; (ii) the closing of (A) a merger or consolidation of the Company with or into any other corporation (other than a wholly-owned subsidiary corporation) in which all of the voting power of the Company is disposed of, (B) the sale of all or substantially all the assets or business of the Company, or (C) any other transaction or series of related transactions in which all of the voting power of the Company is disposed of; or (iii) written consent of each of the Voting Parties who, subject to this Section 13, is still a party to this Agreement. (b) A Voting Party will lose its right to designate: (i) one representative to the Board under Section 1 if such Voting Party is the beneficial owner of less than 60% of the Shares owned by it at the time of the IPO as set forth on Exhibit A; and (ii) one representative to the Board under Section 1 if such Voting Party is the beneficial owner of less than 30% of the Shares owned by it at the time of the IPO as set forth on Exhibit A, in each case determined as of the applicable record date. (c) A Voting Party will no longer have any rights or obligations under this Agreement and will cease to be a party hereto when it, and all of its Affiliates, lose the right to designate any representative to the Board under Section 1. 5 14. Entire Agreement. This Agreement contains the parties' entire understanding and agreement with respect to its subject matter, and any and all conflicting or inconsistent discussions, agreements, promises, representations and statements, if any, between the parties or their representatives that are not incorporated in this Agreement shall be null and void and are merged into this Agreement. [Signature pages follow] 6 IN WITNESS WHEREOF, the Voting Parties have entered into this Stockholders Voting Agreement as of the Effective Date. 3COM CORPORATION By: /s/ JANICE ROBERTS --------------------------------------------- Name: Title: Address: 5400 Bayfront Plaza Santa Clara, CA 95052 Fax No. 408-326-6296 NEXGEN TECHNOLOGIES, L.L.C. By: /s/ DAVID S. OROS --------------------------------------------- Name: David S. Oros Title: Member Address: 11460 Cronridge Drive Owings Mills, MD 21117 Fax No. 410-654-6554 S-1 7 IN WITNESS WHEREOF, the Voting Parties have entered into this Stockholders Voting Agreement as of the Effective Date. TELCOM-ATI INVESTORS, L.L.C. By: /s/ HAL B. PERKINS ----------------------------- Name: Hal B. Perkins Title: General Counsel Address: 211 N. Union Street, Suite 300 Alexandria, VA 22314 Fax No. 703-706-3801 REUTERS MARKETCLIP HOLDINGS SARL By: /s/ DEVIN WENIG ----------------------------- Name: Title: Address: c/o Reuters America, Inc. 1700 Broadway, 2nd Floor New York, NY 10019 Fax No. 212-893-2070 S-2 8
EXHIBIT A --------- Shares of Common Stock Voting Party Beneficially Owned - ------------ ------------------ NexGen Technologies, L.L.C. 6,791,668 3Com Corporation 2,500,000 Telcom-ATI Investors, L.L.C. 5,151,948 Reuters MarketClip Holdings Sarl 2,828,055
S-3 9 FIRST AMENDMENT TO STOCKHOLDERS VOTING AGREEMENT This FIRST AMENDMENT TO STOCKHOLDERS VOTING AGREEMENT ("Amendment") dated as of March 6, 2000 (the "Effective Date"), is by and among NexGen Technologies, L.L.C., a Maryland limited liability company ("NexGen"), 3Com Corporation, a Delaware corporation ("3Com"), Telcom-ATI Investors, L.L.C., a Delaware limited liability company ("Telcom") and Reuters MarketClip Holdings Sarl, a limited liability company formed under the laws of Switzerland ("Reuters"). Each of NexGen, 3Com, Telcom and Reuters is referred to as a "Voting Party," and collectively they are referred to as "Voting Parties." WHEREAS, the Voting Parties entered into a Stockholders Voting Agreement ("Agreement") on October 12, 1999; and WHEREAS, the Voting Parties find it necessary at this time to amend the Agreement pursuant to Section 6 thereof. NOW, THEREFORE, in consideration of the mutual promises herein contained, and other consideration, the receipt and adequacy of which hereby is acknowledged, the parties agree to amend the Agreement by replacing Section 1 thereto with the following: 1. Board of Directors. This Agreement shall not become effective unless and until the Merger is completed. From and after the date of the Merger and until the provisions of this Section 1 cease to be effective, each of the Voting Parties shall vote, or cause the vote of, all shares of Common Stock and other voting securities of the Company over which such Voting Party has voting control, and will take all other necessary or desirable actions within its control (whether in its capacity as a stockholder or officer of the Company or otherwise) in order to ensure that the size of the Board of Directors (the "Board") shall be no more than twelve (12) and no less than seven (7) and to cause the election to the Board of: (a) Two (2) representatives designated by NexGen, who initially shall be David Oros and Mark Ein; (b) Two (2) representatives designated by Telcom, who initially shall be Rahul Prakash and Rajendra Singh; (c) One (1) representative designated by 3Com, who initially shall be Janice Roberts; (d) One (1) representative designated by Reuters, who initially shall be Devin Wenig; and (e) Commencing on the date of the first annual meeting of Stockholders of the Company, if the Board of Directors consists of up to nine (9) members, (1) representative jointly designated by NexGen and Telcom; and if the Board 10 of Directors consists of at least ten (10) or eleven (11) members, two (2) representatives jointly designated by NexGen and Telcom. 2. The Agreement shall remain in full force and effect as amended herein. (Signature pages follow.) 2 11 IN WITNESS WHEREOF, the Voting Parties have entered into this Amendment as of the Effective Date. 3COM CORPORATION By: /s/ JANICE ROBERTS -------------------------------- Name: Title: Address: 5400 Bayfront Plaza Santa Clara, CA 95052 Fax No. 408-326-6296 NEXGEN TECHNOLOGIES, L.L.C. By: /s/ DAVID S. OROS -------------------------------- Name: David S. Oros Title: Member Address: 11460 Cronridge Drive Owings Mills, MD 21117 Fax No. 410-654-6554 S-1 12 IN WITNESS WHEREOF, the Voting Parties have entered into this Amendment as of the Effective Date. TELCOM-ATI INVESTORS, L.L.C. By: /s/ HAL B. PERKINS -------------------------------- Name: Title: Address: 211 N. Union Street, Suite 300 Alexandria, VA 22314 Fax No. 703-706-3801 REUTERS MARKETCLIP HOLDINGS SARL By: /s/ DEVIN WENIG -------------------------------- Name: Title: Address: c/o Reuters America, Inc. 1700 Broadway, 2nd Floor New York, NY 10019 Fax No. 212-893-2070 S-2 EX-99.D 4 w51206ex99-d.txt AGREEMENT WITH RESPECT TO RESTRICTED SHARES 1 |__| Participant's Copy |__| Aether's Copy AETHER SYSTEMS, INC. ACQUISITION INCENTIVE PLAN RESTRICTED STOCK AGREEMENT FOR REPLACEMENT GRANTS FOR EMPLOYEES David Oros: Aether Systems, Inc. ("Aether") has granted you (the "Grants") under its Acquisition Incentive Plan (the "Plan") the number of shares of Aether common stock (the "Shares") set forth on one or more Exhibits A to this Agreement, subject to certain restrictions specified below in RESTRICTIONS. (While subject to the restrictions, this Agreement refers to the Shares as "Restricted Stock."). This Grant replaces one or more option grants you had previously received from Aether. You agree that you have no further claim to any portion of such option grant cancelled in connection with this Grant of Restricted Stock. The Grants are subject in all respects to the applicable provisions of the Plan. This Agreement does not cover all of the rules that apply to the Grants under the Plan, and the Plan defines any terms in this Agreement that the Agreement does not define. In addition to the terms and restrictions in the Plan, the following terms and restrictions apply to each Grant: RESTRICTIONS You may not sell, assign, pledge, encumber, or otherwise AND transfer any interest in the Restricted Stock until the FORFEITURE dates set forth in the Vesting Schedule in Exhibit A (at which point the Restricted Stock will be referred to as "Vested"). Unless the Administrator determines otherwise at any time or Exhibit A provides otherwise, if your service with Aether (and its subsidiaries) terminates for any reason before all of your shares of Restricted Stock are Vested, then you will forfeit your unVested shares to the extent that they do not otherwise vest as a result of the termination. The forfeited shares of Restricted Stock will then immediately revert to Aether. You will receive no payment for shares that you forfeit. VESTING Assuming you remain an employee of (or director of) SCHEDULE Aether, all restrictions under RESTRICTIONS AND FORFEITURE will lapse on the Restricted Stock as set forth on Exhibit A and they will become Vested, and you will be able, subject to normal securities limitations, to sell the Shares. LIMITED STATUS You understand and agree that Aether will not consider you a stockholder for any purpose with respect to the Restricted Stock, unless and until they have been issued to you, and they become Vested. 2 VOTING You may not vote the Restricted Shares unless and until they become Vested. POSSESSION While unVested, the Restricted Stock will be held by an agent or service provider designated by Aether. After Vesting, Aether will direct the transfer of Shares to you in book entry form (either directly or to a brokerage firm). ADDITIONAL Aether may postpone issuing and delivering any Shares for CONDITIONS so long as Aether determines to be advisable to satisfy TO RECEIPT the following: its completing or amending any securities registration or qualification of the Shares or its or your satisfying any exemption from registration under any Federal or state law, rule, or regulation; its receiving proof it considers satisfactory that a person seeking to receive the Shares after your death is entitled to do so; your complying with any requests for representations under the Plan; and your complying with any federal, state, or local tax withholding obligations. TAX Unless you made an 83(b) election within 30 days of the WITHHOLDING Date of Grant, you will be taxable on the Shares as they become Vested and must arrange to pay the taxes on this income. ADDITIONAL If you receive Restricted Stock at a time when Aether does REPRESENTATIONS not have a current registration statement (generally on FROM YOU Form S-8) under the Securities Act of 1933 (the "Act") that covers issuances of shares to you, you must comply with the following before Aether will release the Shares to you. You must -- represent to Aether, in a manner satisfactory to Aether's counsel, that you are acquiring the Shares for your own account and not with a view to reselling or distributing the Shares; and agree that you will not sell, transfer, or otherwise dispose of the Shares unless: a registration statement under the Act is effective at the time of disposition with respect to the Shares you propose to sell, transfer, or otherwise dispose of; or Aether has received an opinion of counsel or other information and representations it considers satisfactory to the effect that, because of Rule 144 under the Act or otherwise, no registration under the Act is required. - 2 - 3 ADDITIONAL You will not receive the Shares if issuing the Shares RESTRICTION would violate any applicable federal or state securities laws or other laws or regulations. NO EFFECT ON Nothing in this Agreement restricts Aether's rights or EMPLOYMENT those of any of its affiliates to terminate your OR OTHER employment or other relationship at any time, with or RELATIONSHIP without cause. The termination of employment or other relationship, whether by Aether or any of its affiliates or otherwise, and regardless of the reason for such termination, has the consequences provided for under the Plan and any applicable employment or severance agreement or plan. NO EFFECT ON You understand and agree that the existence of an Option RUNNING BUSINESS will not affect in any way the right or power of Aether or its stockholders to make or authorize any adjustments, recapitalizations, reorganizations, or other changes in Aether's capital structure or its business, or any merger or consolidation of Aether, or any issuance of bonds, debentures, preferred or other stock, with preference ahead of or convertible into, or otherwise affecting Aether's common stock or the rights thereof, or the dissolution or liquidation of Aether, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether or not of a similar character to those described above. GOVERNING LAW The laws of the State of Delaware will govern all matters relating to this Agreement, without regard to the principles of conflict of laws. NOTICES Any notice you give to Aether must follow the procedures then in effect. If no other procedures apply, you must send your notice in writing by hand or by mail to the office of Aether's Secretary (or to the Chair of the Administrator if you are then serving as Secretary). If mailed, you should address it to Aether's Secretary (or the Chair of the Administrator) at Aether's then corporate headquarters, unless Aether directs participants to send notices to another corporate department or to a third party administrator or specifies another method of transmitting notice. Aether and the Administrator will address any notices to you at your office or home address as reflected on Aether's personnel or other business records. You and Aether may change the address for notice by like notice to the other, and Aether can also change the address for notice by general announcements to participants. - 3 - 4 PLAN GOVERNS Wherever a conflict may arise between the terms of this Agreement and the terms of the Plan, the terms of the Plan will control. AETHER SYSTEMS, INC. ACKNOWLEDGMENT I acknowledge I received a copy of the Plan and the prospectus describing the Plan. I represent that I have read and am familiar with the Plan's terms. By signing where indicated on Exhibit A, I accept each Grant subject to all of the terms and provisions of this Agreement and of the Plan under which the Grant is made, as the Plan may be amended in accordance with its terms. I agree to accept as binding, conclusive, and final all decisions or interpretations of the Administrator concerning any questions arising under the Plan with respect to each Grant. NO ONE MAY SELL, TRANSFER, OR DISTRIBUTE THE SECURITIES COVERED BY THE GRANT WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR A SATISFACTORY OPINION OF COUNSEL SATISFACTORY TO AETHER OR OTHER INFORMATION AND REPRESENTATIONS SATISFACTORY TO AETHER THAT SUCH REGISTRATION IS NOT REQUIRED. - 4 - 5 AETHER SYSTEMS, INC. ACQUISITION INCENTIVE PLAN RESTRICTED STOCK REPLACEMENT AGREEMENT FOR EMPLOYEES EXHIBIT A Recipient Information: - --------------------- Name: David Oros S.S.N.: - - ---------------------- Signature: X /s/ David S. Oros --------------------------- Grant Information: - ----------------- Restricted Shares: 105,000 Date of Grant: 1-5-01 Vesting Schedule: This Grant is nonforfeitable ("Vested") as to 10% of the Shares of Restricted Stock on October 1, 2001, 30% of the Shares of Restricted Stock on October 1, 2002, 30% of the Shares of Restricted Stock on October 1, 2003, 30% of the Shares of Restricted Stock on October 1, 2004 (each a "Vesting Date"), assuming you remain employed through those dates. Grant Expiration Rules: You will forfeit any unVested portions this Grant immediately when you cease to be employed. Ceasing to be employed for this purposes includes death and termination as a result of disability. Special Tax Rule: You acknowledge that, unless you notify Aether to the contrary, sufficient Shares will be sold to cover any tax withholding obligations as of each Vesting Date. You may select in advance (under procedures Aether will provide) to sell more or fewer Shares than withholding requires. If selling the Shares is impractical or not permitted or you elect not to have Shares sold, you agree to provide whatever withholding payments are required. You further acknowledge that the withheld taxes may not satisfy all of your tax obligations with respect to the Shares. - 5 - EX-99.E 5 w51206ex99-e.txt JOINT FILING AGREEMENT 1 JOINT FILING AGREEMENT This Joint Filing Agreement (this "Agreement") is entered into as of July 2, 2001 by and between NexGen Technologies, L.L.C., a limited liability company organized under the laws of the State of Maryland ("NexGen"), and David S. Oros, an individual United States citizen ("Oros"). NexGen and Oros hereby agree to jointly prepare and timely file (or otherwise deliver, as appropriate) all statements on Schedule 13D or amendments thereto ("13D Filings") required to be filed by them pursuant to the Securities Exchange Act of 1934, as amended, with respect to their respective ownership of common shares, par value $.01 per share, of Aether Systems, Inc., and each of them mutually covenants to the other that they will fully cooperate with each other in the preparation and timely filing of all such 13D Filings. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above set forth. NEXGEN TECHNOLOGIES, L.L.C. By: /s/ DAVIS S. OROS ------------------------- Davis S. Oros Its: Managing Member /s/ DAVIS S. OROS ----------------------------- David S. Oros -----END PRIVACY-ENHANCED MESSAGE-----