sc13dza

0000950133-06-002950.txt : 20060613 0000950133-06-002950.hdr.sgml : 20060613 20060613163526 ACCESSION NUMBER: 0000950133-06-002950 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20060613 DATE AS OF CHANGE: 20060613 GROUP MEMBERS: DAVID S OROS SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AETHER HOLDINGS INC CENTRAL INDEX KEY: 0001093434 STANDARD INDUSTRIAL CLASSIFICATION: INVESTORS, NEC [6799] IRS NUMBER: 522186634 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-58205 FILM NUMBER: 06902636 BUSINESS ADDRESS: STREET 1: 621 E. PRATT STREET STREET 2: SUITE 601 CITY: BALTIMORE STATE: MD ZIP: 21202 BUSINESS PHONE: 4435739400 MAIL ADDRESS: STREET 1: 621 E. PRATT STREET STREET 2: SUITE 601 CITY: BALTIMORE STATE: MD ZIP: 21202 FORMER COMPANY: FORMER CONFORMED NAME: AETHER SYSTEMS INC DATE OF NAME CHANGE: 20000525 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 IRS NUMBER: 179802074 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A 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/A 1 w22112sc13dza.htm SCHEDULE 13D/A sc13dza


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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 2 )*

AETHER HOLDINGS, INC

(Name of Issuer)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

00809C 10 6

(CUSIP Number)

David S. Oros
Chairman
621 E. Pratt Street, Suite 601, Baltimore, MD 212022
Telephone: (443) 573-9400

(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)

June 6, 2006

(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 §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-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 (“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).

Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number.


CUSIP No.		00809C 10 6

NAMES OF REPORTING PERSONS:

NexGen Technologies, L.L.C.

I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):

17-9802074

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):

(a) o

(b) þ

SEC USE ONLY:

SOURCE OF FUNDS (SEE INSTRUCTIONS):

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e):

CITIZENSHIP OR PLACE OF ORGANIZATION:

Maryland

SOLE VOTING POWER:

NUMBER OF

2,506,697

SHARED VOTING POWER:

BENEFICIALLY

OWNED BY

None

EACH

SOLE DISPOSITIVE POWER:

REPORTING

PERSON

2,506,697

WITH

SHARED DISPOSITIVE POWER:

None

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:

2,506,697

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):

5.3%

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):


CUSIP No.		00809C 10 6


1	NAMES OF REPORTING PERSONS: David S. Oros

	I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):


2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
	(a) o
	(b) þ

3	SEC USE ONLY:



4	SOURCE OF FUNDS (SEE INSTRUCTIONS):

	OO

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e):

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION:

	Maryland

		7	SOLE VOTING POWER:

NUMBER OF			3,005,879

SHARES		8	SHARED VOTING POWER:
BENEFICIALLY
OWNED BY			2,506,697

EACH		9	SOLE DISPOSITIVE POWER:
REPORTING
PERSON			2,105,879

WITH		10	SHARED DISPOSITIVE POWER:

			2,506,697

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:

	5,512,576

12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):

	o

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):

	11.6%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):

	IN

Introduction

This Amendment No. 2 amends and supplements the Schedule 13D filed on February 7, 2006 (the “Prior Statement”) by (i) David S. Oros and (ii) NexGen Technologies, L.L.C., a Maryland limited liability company (together with Mr. Oros, the “Reporting Persons”) relating to their beneficial ownership of shares of the common stock, par value $0.01 per share (the “Shares”), of Aether Holdings, Inc., a Delaware corporation (the “Issuer”). Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed to them in the Prior Statement.

Except as specifically provided herein, this Amendment does not modify any of the information previously reported in the Prior Statement.

Item 1.

Item 1 of the Prior Statement is hereby amended as follows:

Following closing of the merger described in Item 4 below, the Issuer moved its principal executive office to 1330 Avenue of the Americas, 40th Floor, New York, NY 10019.

Item 2. Identity and Background.

Item 2 of the Prior Statement is hereby amended as follows:

As a result of the merger discussed in Item 4 below, Mr. Oros has resigned as Chief Executive Officer of the Issuer and remains as Chairman.

Item 4. Purpose of Transaction.

Item 4 of the Prior Statement is hereby amended as follows:

On June 6, 2006, the Issuer entered into an Agreement and Plan of Merger with UCC Capital Corp. (“UCC Capital”), UCC Consulting Corp. (“Consulting Corp.”), UCC Servicing, LLC (“Servicing LLC,” and together with UCC Capital and Consulting Corp, “UCC”) and the other parties named therein. The transactions contemplated by the Merger Agreement were completed, and the Issuer acquired UCC on June 6, 2006. At the effective time of the merger, each issued and outstanding share of UCC Capital and Consulting Corp. and the outstanding membership interests of Servicing LLC were converted into the right to receive the merger consideration, which included the right to 2.5 million shares of the Issuer’s common stock (in the form of an earn-out) if future performance targets are met within five years of closing (or such shorter period as provided under the Merger Agreement). At the closing of the merger, the Issuer issued the first 900,000 shares of the earn-out consideration (the “First Tranche Shares”) into an escrow account maintained by Wilmington Trust Company, as escrow agent. The First Tranche Shares will be released to the former UCC securityholders only upon satisfaction of the first earn-out target, as contemplated under the terms of the Merger Agreement. If the additional shares are not earned during the earn-out period, they will be returned to the Issuer.

At the closing of the merger, the former UCC securityholders and David S. Oros entered into a voting agreement (the “Voting Agreement”) pursuant to which Mr. Oros (or any of his designees appointed with the consent of the Board of Directors of the Issuer) received a proxy from the former UCC securityholders to vote or act by written consent with respect to the First Tranche Shares, as well as any shares issued in respect of the First Tranche Shares, prior to their release to the former UCC

securityholders or their return to the Issuer. The proxy and power of attorney granted by the former UCC securityholders is irrevocable during the term of the Voting Agreement. All references to the Voting Agreement are qualified in their entirety by reference to the copy of the Voting Agreement filed as Exhibit 2 to this amended Schedule 13D, which is incorporated herein by reference.

Mr. Oros holds 150,000 shares of restricted stock that began vesting upon the Issuer’s determination of a Trigger Event, as reported previously on 8-K filed by the Issuer on June 7, 2006. At the time of the Trigger Event, Mr. Oros incurred a tax liability associated with his restricted shares. Under the terms of the restricted stock grant, the Issuer’s Board of Directors provided that Mr. Oros could satisfy his tax withholding obligation upon the commencement of eligibility for vesting by surrendering a number of shares having a value on the date of eligibility for vesting equal to the tax withholding obligation. On June 8, 2006, Mr. Oros surrendered 51,424 shares to satisfy the tax withholding obligation. The 150,000 restricted shares remain subject to vesting and are not deemed beneficially owned for purposes of this Report.

Other than the 900,000 shares for which Mr. Oros holds a proxy to vote and the 51,424 surrendered to the Issuer to satisfy the tax withholding obligation discussed above, neither Mr. Oros nor NexGen Technologies, L.L.C. has acquired or disposed of any shares of the Issuer since the Prior Statement.

Other than as described in this Schedule 13D, the Reporting Persons do not have any plan or proposal that relates to or would result in any of the actions described in subparagraphs (a) through (j) of Schedule 13D.

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 5,512,576 Shares, constituting 11.6% of the total outstanding Shares as of June 6, 2006, based on the number of shares of outstanding common stock of the Issuer as reported on the Form 10-Q filed on May 10, 2006 plus the 3.4 million shares issued in connection with the acquisition of UCC, as reported on the Form 8-K filed on June 7, 2006. Mr. Oros has the sole power to direct the voting of 3,005,879 Shares beneficially owned by him, and the sole power to direct the disposition of 2,105,879 Shares beneficially owned by him. The 5,512,576 Shares beneficially owned by Mr. Oros include immediately exercisable warrants to purchase 812,500 Shares, options to purchase 105,600 Shares and 900,000 Shares Mr. Oros has the right to vote under the Voting Agreement. Mr. Oros has the sole power to direct the voting and disposition of the 812,500 Shares issuable upon exercise of warrants and the 105,600 Shares issuable upon exercise of options. By virtue of his position as managing member of NexGen Technologies. L.L.C., Mr. Oros has the shared power to direct the voting and disposition of 2,506,697 Shares held by NexGen Technologies. L.L.C. During the term of the Voting Agreement, Mr. Oros has the sole voting power of the 900,000 shares covered by the Voting Agreement.

NexGen Technologies, L.L.C. beneficially owns an aggregate of 2,506,697 Shares, constituting 5.3% of the total outstanding Shares. NexGen has the sole power to direct the voting and disposition of 2,506,697 Shares.

	(c)		Not applicable.

	(d)		Not applicable.

	(e)		Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

The description of the Voting Agreement set forth in Item 4 of this Schedule 13D/A is incorporated herein by this reference.

Item 7. Material to be filed as Exhibits.

Exhibit 1 Joint Filing Agreement

Exhibit 2 Voting Agreement

Signature

After reasonable inquiry and to the best of each of the undersigned’s knowledge and belief, each of the undersigned certify that the information set forth in this statement is true, complete and correct.


		NEXGEN TECHNOLOGIES, L.L.C.

		/s/ David S. Oros

		By: David S. Oros
		Its: Managing Member


		/s/ David S. Oros

		David S. Oros

EX-1 2 w22112exv1.htm EXHIBIT 1 exv1

Exhibit 1

JOINT FILING AGREEMENT

This Joint Filing Agreement (this “Agreement”) is entered into as of June 12, 2006 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

		/s/ Davis S. Oros

		Its: Managing Member


		/s/ David S. Oros

		David S. Oros

EX-2 3 w22112exv2.htm EXHIBIT 2 exv2

Exhibit 2

VOTING AGREEMENT

This VOTING AGREEMENT (the “Agreement”), dated as of June 6, 2006, is entered into by and between Aether Holdings, Inc., a Delaware corporation (the “Company”), the undersigned, Robert W. D’Loren, solely in his capacity as Stockholders’ Representative on behalf of certain stockholders (the “Stockholders”) of the Company, and David Oros (“Oros”).

WHEREAS, concurrently with the execution of this Agreement, the Company, AHINV Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of the Company (“MergerSub”), UCC Capital Corp., a New York corporation (“Capital”), UCC Consulting Corp., a New York corporation (“Consulting”), and UCC Servicing, LLC, a New York limited liability company (“Servicing”) (Capital, Consulting and Servicing being collectively referred to herein as “UCC”) are entering into an Agreement and Plan of Merger (as the same may be amended from time to time, the “Merger Agreement”), providing for, inter alia, the merger of each of Capital, Consulting and Servicing, with and into MergerSub pursuant to the laws of the States of New York and Delaware (the “Merger”);

WHEREAS, in connection with the Merger Agreement, the Company, the Stockholders’ Representative and Wilmington Trust Company (the “Escrow Agent”) have entered into an Escrow Agreement, whereby certain First Tranche Shares (as such term is defined in the Merger Agreement and the Escrow Agreement) are being delivered into escrow with the Escrow Agent by the Company; and

WHEREAS, the parties hereto wish to provide for the voting of such number of First Tranche Shares set forth opposite the name of each Stockholder on Schedule 1 hereto during such time as they are held in escrow by the Escrow Agent under the Escrow Agreement.

NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which is hereby acknowledged, the parties hereto agree as follows (with all capitalized terms used and not otherwise defined herein having their respective meanings as set forth in the Merger Agreement or the Escrow Agreement, as applicable):

1. Agreement to Vote Shares; Irrevocable Proxy. Stockholder hereby appoints Oros and any designee of Oros appointed with the consent of the Board of Directors of the Company, and each of them individually, (collectively, Oros and such designees are hereinafter referred to as the “Proxy Holder”) its proxies and attorneys-in-fact, with full power of substitution and resubstitution, to vote or act by written consent during the term of this Agreement with respect to the First Tranche Shares and any New Shares (as defined below). Stockholders shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy and power of attorney. The proxy and power of attorney granted hereunder by Stockholders shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by Stockholder with respect to the matters contemplated hereunder. The power of attorney granted by Stockholders herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Stockholders. The proxy and power of attorney granted hereunder shall terminate upon the termination of this Agreement.

2. No Voting Trusts or Other Arrangements. Each Stockholder agrees that he or it, as applicable, will not, and will not permit any entity under his or its control to grant any proxies with respect to the First Tranche Shares or subject any of the First Tranche Shares to any arrangement with respect to the voting of the First Tranche Shares other than this Agreement..

3. Stockholder Capacity. Notwithstanding anything to the contrary set forth herein, each Stockholder is entering into this Agreement solely in Stockholder’s capacity as the holder of the Stockholder First Tranche Shares and New Shares (as defined below), as may become applicable, and nothing in this Agreement shall prevent Stockholder from taking any action or omitting to take any action in Stockholder’s capacity as a member of the board of directors of the Company or any of its subsidiaries (or any committee thereof) or as an officer or employee of the Company or any of its subsidiaries, in either case as applicable or as may become applicable to such Stockholder.

4. Transfer and Encumbrance. Each Stockholder represents and warrants that (a) the First Tranche Shares are free and clear of all liens, claims, charges, security interests or other encumbrances, other than those that may be created by the Merger Agreement, the Escrow Agreement and this Agreement, (b) there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which Stockholder is a party relating to the pledge, disposition or voting of such shares, and there are no voting trusts or voting agreements with respect to the such shares, other than this Agreement, (c) Stockholder has full power and authority to enter into, execute and deliver this Agreement and to perform fully Stockholder’s obligations hereunder and (d) this Agreement constitutes the legal, valid and binding obligation of Stockholder in accordance with its terms. On or after the date hereof and during the term of this Agreement, Stockholder agrees not to enter into any agreement or understanding to transfer, sell, offer, exchange, pledge or otherwise dispose of or encumber any of the Stockholder First Tranche Shares or New Shares (as defined below). This Section 4 shall not prohibit a transfer of any Stockholder First Tranche Shares or New Shares by Stockholder (i) to any member of Stockholder’s immediate family, or to a trust for the benefit of Stockholder or any member of Stockholder immediate family, (ii) upon the death of Stockholder, or (iii) if Stockholder is a partnership or limited liability company, to one or more partners or members of Stockholder or to an affiliated corporation under common control with Stockholder; provided, however, that a transfer referred to in this sentence shall be permitted only if, as a precondition to such transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to the Company and the Proxy Holder, to be bound by the terms of this Agreement.

5. New Shares. Stockholder agrees that all Shares that Stockholder receives as a result of any stock splits, stock dividends or reclassifications of Stockholder First Tranche Shares (all such Shares collectively, “New Shares”), shall be subject to the terms of this Agreement to the same extent as if they constituted Stockholder First Tranche Shares as of the date hereof.

6. Specific Performance. Each party hereto acknowledges that it will be impossible to measure in money the damage to the other party if a party hereto fails to comply with any of the obligations imposed by this Agreement, that every such obligation is material and that, in the event of any such failure, the other party will not have an adequate remedy at law or damages. Accordingly, each party hereto agrees that injunctive relief or other equitable remedy, in addition to remedies at law or damages, is the appropriate remedy for any such failure and will not oppose

the granting of such relief on the basis that the other party has an adequate remedy at law. Each party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with any other party’s seeking or obtaining such equitable relief.

7. Entire Agreement. This Agreement supersedes all prior agreements, written or oral, among the parties hereto with respect to the subject matter hereof and contains the entire agreement among the parties with respect to the subject matter hereof. This Agreement may not be amended or supplemented, and no provisions hereof may be modified or waived, except by an instrument in writing signed by all the parties hereto. No waiver of any provisions hereof by any party shall be deemed a waiver of any other provision hereof by any such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof by such party.

8. Notices. All notices hereunder shall be in writing and shall be deemed given when delivered personally, upon receipt of a transmission confirmation if sent by telecopy or like transmission or on the next business day when sent by Federal Express, Express Mail or other reputable overnight courier service to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):

If to the Company or the Proxy Holder:

621 E. Pratt Street, Suite 601
Baltimore, MD 21202
Attention: David S. Oros
Fax: 443-836-0745

With a copy (which shall not constitute notice to the Company) to:

Kirkland & Ellis LLP
655 15^th Street, N.W.
Washington, DC 2005
Attention: Mark D. Director, Esq.
Fax: 202-879-5200

If to Stockholder, to the address or telecopy number set forth for Stockholder on the signature page hereof.

9. Miscellaneous.

(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF. The parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the Federal courts of the United States of America, in each case sitting in Delaware, solely in respect of the interpretation and enforcement of the provisions of this Agreement and in respect of the transactions contemplated hereby, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement

hereof or of any such document, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement may not be enforced in or by such courts, and the parties hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard and determined in such a Delaware State or Federal court. The parties hereby consent to and grant any such court jurisdiction over the person of such parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 9 or in such other manner as may be permitted by law shall be valid and sufficient service thereof.

(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, AND (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY.

(c) If any provision of this Agreement or the application of such provision to any person or circumstances shall be held invalid or unenforceable by a court of competent jurisdiction, such provision or application shall be unenforceable only to the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the application of such provision to persons or circumstances, other than the party as to which it is held invalid, and the remainder of this Agreement, shall not be affected.

(d) This Agreement may be executed in one or more counterparts (including by facsimile), each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.

(e) This Agreement shall terminate automatically upon the release of the last of the Stockholder First Tranche Shares and New Shares, if any, to either the Company or the Stockholder, all under the terms and subject to the conditions of the Escrow Agreement..

(f) Each party hereto shall execute and deliver such additional documents as may be necessary or desirable to effect the transactions contemplated by this Agreement.

(g) The obligations of the parties set forth in this Agreement shall not be effective or binding upon either party hereto until such time as the Merger Agreement is executed and delivered by the Company, Merger Sub, and the Securityholders’ Representative.

(h) No party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written consent of the other party hereto. Any assignment contrary to the provisions of this Section 9(h) shall be null and void.

[END OF PAGE]

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the parties hereto have executed and delivered this Voting Agreement as of the date first written above.


		AETHER HOLDINGS, INC., a Delaware corporation



		By:

				Name:
				Title:




		Robert W. D’Loren, Stockholder




		Robert W. D’Loren, as attorney-in-fact for each of the Stockholders listed on Schedule 1 hereto




		David Oros, as Proxy Holder

SCHEDULE 1


Name of Stockholder	Address and Telecopy	Number of First Tranche
	Number for Notices	Shares
	Pursuant to Section 8


Robert W. D’Loren	c/o UCC Capital 1330 Avenue of the Americas New York, NY 10019 Fax: (212) 277-1160		158,249

D’Loren Realty, LLC	c/o UCC Capital 1330 Avenue of the Americas New York, NY 10019 Fax: (212) 277-1160		477,129

The Robert D’Loren Family Trust Dated March 29, 2002	c/o Mark X. DiSanto Triple Crown Development 5351 Jaycee Avenue Harrisburg, PA 17112 Fax: 717-657-8125		96,715

D’Loren Levien Group, LLC	c/o UCC Capital 1330 Avenue of the Americas New York, NY 10019 Fax: (212) 277-1160	—

Barry J. Levien	235 Cleft Road Mill Neck, NY 11765		81,557

James F. Haran	c/o UCC Capital 1330 Avenue of the Americas New York, NY 10019 Fax: (212) 247-7131		91,350