sc13dza

-----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, JEqLxAJjd9dexJ89XP0UZkfOoZ37a9LY9cbnJLYg1F+w2tMpJuhOVkfIq+X58Bnd vvXpfH4ovt4lXZg5hXefpA== 0000950133-06-005133.txt : 20061129 0000950133-06-005133.hdr.sgml : 20061129 20061128160408 ACCESSION NUMBER: 0000950133-06-005133 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20061128 DATE AS OF CHANGE: 20061128 GROUP MEMBERS: D'LOREN REALTY, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NexCen Brands, 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: 061242314 BUSINESS ADDRESS: STREET 1: 1330 AVENUE OF THE AMERICAS STREET 2: 40TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: 2122771100 MAIL ADDRESS: STREET 1: 1330 AVENUE OF THE AMERICAS STREET 2: 40TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 FORMER COMPANY: FORMER CONFORMED NAME: AETHER HOLDINGS INC DATE OF NAME CHANGE: 20050719 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: D LOREN ROBERT W CENTRAL INDEX KEY: 0001086742 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: BUSINESS PHONE: 2122771101 MAIL ADDRESS: STREET 1: UCC CAPITAL CORP STREET 2: 1330 AVE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10019 SC 13D/A 1 w27565sc13dza.htm AMENDMENT NO. 1 TO SCHEDULE 13D sc13dza

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 1 )*

NEXCEN BRANDS, INC.

(Name of Issuer)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

653351 10 6

(CUSIP Number)

Robert W. D’Loren
D’Loren Realty, LLC
1330 Avenue of the Americas, 40th Floor
New York, NY 10019
Telephone: (212) 277-1100

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

November 7, 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).


CUSIP No.		653351 10 6

NAMES OF REPORTING PERSONS:

D’Loren Realty, LLC

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

13-4081856

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:

New York

SOLE VOTING POWER:

NUMBER OF

1,325,359

SHARED VOTING POWER:

BENEFICIALLY

OWNED BY

None

EACH

SOLE DISPOSITIVE POWER:

REPORTING

PERSON

1,802,488

WITH

SHARED DISPOSITIVE POWER:

None

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:

1,802,488

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

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

3.8%

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):


CUSIP No.		653351 10 6

NAMES OF REPORTING PERSONS:

Robert W. D’Loren

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

###-##-####

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:

United States

SOLE VOTING POWER:

NUMBER OF

2,339,115

SHARED VOTING POWER:

BENEFICIALLY

OWNED BY

1,325,359

EACH

SOLE DISPOSITIVE POWER:

REPORTING

PERSON

578,941

WITH

SHARED DISPOSITIVE POWER:

1,802,488

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:

4,294,852

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

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

9.0%

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):

Introduction

This Amendment No. 1 amends and supplements the Schedule 13D that was originally filed on June 14, 2006 (as amended and supplemented, the “Schedule 13D”) by (1) Robert W. D’Loren and (2) D’Loren Realty, LLC (“D’Loren Realty”), a New York limited liability company (together with Mr. D’Loren, the “Reporting Persons”) relating to their beneficial ownership of shares of common stock, par value $0.01 per share (the “Shares”), of NexCen Brands, Inc., a Delaware corporation (the “Issuer”). Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed to them in the Schedule 13D.

Except as specifically provided herein, this Amendment does not modify any of the information previously reported in the Schedule 13D.

Item 1. Security and Issuer.

Item 1 of the Schedule 13D is hereby amended as follows:

On October 31, 2006, following the 2006 annual meeting and the affirmative vote of the stockholders, the Issuer filed with the Secretary of State of the State of Delaware an amendment to its Certificate of Incorporation changing the name of the Issuer from Aether Holdings, Inc. to “NexCen Brands, Inc.”

Item 4. Purpose of Transaction.

The following information is hereby added to the existing disclosure in Item 4 of the Schedule 13D:

On November 7, 2006, the Issuer, through its subsidiaries NexCen Franchise Brands, Inc. and NexCen Franchise Management, Inc., completed the purchase of all of the outstanding equity interests in Athlete’s Foot Brands, LLC (“Brands”) and Athlete’s Foot Marketing Support Fund, LLC (“AFMSF”), along with certain nominal fixed assets owned by an affiliate of Brands (the “TAF Acquisition”) for initial consideration of $51.5 million, all in accordance with the terms of an Equity Interest and Asset Purchase Agreement dated August 21, 2006. The purchase price consisted of $42.1 million in cash and 1,413,423 shares of common stock of the Issuer.

In connection with the closing of the TAF Acquisition, the Issuer entered into two voting agreements (“TAF Voting Agreements”):

A voting agreement with Robert Corliss, which grants a power of attorney to Robert D’Loren to vote or act by written consent with respect to shares of the Issuer’s common stock issuable to Mr. Corliss upon exercise of a warrant he received at the closing of the TAF Acquisition (the “Corliss Voting Agreement”). The warrant issued to Mr. Corliss can be exercised at any time prior to the third anniversary of the issue date to purchase 500,000 shares of common stock of the Issuer at a per share exercise price of $6.49.

A voting agreement with Athlete’s Foot Marketing Associates, LLC (“AFMA”) which grants a power of attorney to Robert D’Loren until the first anniversary of the closing to vote or act by written consent with respect to the 1,413,423 shares, as adjusted pursuant to the terms of the TAF Acquisition (the “True-up Shares”), issued to AFMA in connection with the TAF Acquisition (the “AFMA Voting Agreement”).

All references to the TAF Voting Agreements are qualified in their entirety by reference to the copies of the TAF Voting Agreements filed as Exhibits 2 and 3 to this amended Schedule 13D, which are incorporated herein by reference.

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 Item 4 of Schedule 13D.

Item 5. Interest in Securities of the Issuer.

Items 5(a) and 5(b) are hereby replaced in their entirety by the following:

(a) and (b) Rows (7) through (11) and (13) of the cover pages to this Schedule 13D are hereby incorporated by reference. Pursuant to the Issuer’s Quarterly Report of Form 10-Q for the quarter ended September 30, 2006, and filed on November 9, 2006, the Issuer had 46,534,296 shares of common stock outstanding. Additionally, 1,413,423 shares of common stock of the Issuer were issued as part of the purchase price in the TAF Acquisition. Consequently, the Issuer has 47,947,719 shares of common stock outstanding as of the date of this report.

D’Loren Realty:

D’Loren Realty beneficially owns an aggregate of 1,802,488 shares of the Issuer’s common stock, constituting 3.8% of the total outstanding shares of the Issuer. The 1,802,488 shares of common stock beneficially owned by D’Loren Realty includes (1) 1,325,359 shares owned by D’Loren Realty (of which 318,086 shares are held in escrow to satisfy indemnification claims made by the Issuer against former stockholders of UCC) and (2) 477,129 shares issued to D’ Loren Realty but held in escrow until such time (if any) as future performance targets provided in the Merger Agreement are satisfied. For purposes of determining the aggregate beneficial ownership, D’Loren Realty is deemed to retain investment power over the 795,215 shares held in escrow.

D’Loren Realty has sole power to direct the disposition of 1,802,488 shares and the sole power to direct the voting of 1,325,359 shares. The sole voting power total includes the 318,086 shares held in escrow to satisfy indemnity claims made by the Issuer against former stockholders of UCC because pursuant to the terms of the escrow agreement D’Loren Reality retains voting power over these shares. The number of shares for which D’Loren Realty has sole voting power excludes the 477,129 shares that will be released from escrow upon satisfaction of future performance targets because pursuant to the terms of the voting agreement between the Issuer and the former UCC stockholders, David S. Oros retains the voting power over such shares.

Mr. D’Loren:

Mr. D’Loren beneficially owns an aggregate of 4,294,852 shares of the Issuer’s common stock, constituting 9.0% of the total outstanding shares of the Issuer. The 4,294,852 shares beneficially owned by Mr. D’Loren includes (1) 425,692 shares owned by Mr. D’Loren (of which 102,666 shares are held in escrow to satisfy indemnification claims made by the Issuer against former stockholders of UCC), (2) 153,249 shares issued to Mr. D’ Loren but held in escrow until such time (if any) as future performance targets provided in the Merger Agreement are satisfied, (3) by virtue of his position as sole member-manager of D’Loren Realty, the 1,802,488 shares beneficially owned by D’Loren Realty, and (4) by virtue of the TAF Acquisition, the 1,413,423 shares over which Mr. D’Loren exercises voting control pursuant to the terms of the AFMA Voting Agreement and the 500,000 shares over which Mr. D’Loren exercises voting control pursuant to the terms of the Corliss Voting Agreement. For purposes of determining the aggregate beneficial ownership, Mr. D’Loren is deemed to retain investment power over the 255,915 shares held in escrow.

Mr. D’Loren has sole power to direct the disposition of 578,941 shares (which includes the 425,692 shares directly owned by Mr. D’Loren and the 153,249 shares held in escrow until such time (if any) as future performance targets provided in the Merger Agreement are satisfied). Mr. D’Loren has the sole power to direct the voting of 2,339,115 shares (which includes the 425,692 shares directly owned by Mr. D’Loren and the 1,913,423 shares over which Mr. D’Loren exercises voting control pursuant to the terms of the TAF Voting Agreements). The sole voting power total also includes the 102,666 shares held in escrow to satisfy indemnity claims made by the Issuer against former stockholders of UCC because pursuant to the terms of the UCC escrow agreement Mr. D’Loren retains voting power over those shares. The sole voting power total excludes the 153,249 shares that will be released from escrow upon satisfaction of future performance targets because pursuant to the terms of the voting agreement between the Issuer and the former UCC stockholders, David S. Oros retains the voting power over such shares.

Mr. D’Loren is the sole member-manager of D’Loren Realty. Mr. D’Loren therefore has the shared power to direct the disposition of the 1,802,488 shares beneficially owned by D’Loren Realty and the shared power to vote the 1,325,359 shares over which D’Loren Realty exercises voting control.

Mr. D’Loren is the grantor of the Robert D’Loren Family Trust Dated March 29, 2002 (the “Trust”), the beneficiaries of which are two minor children of Mr. D’Loren. The Trust is irrevocable, the trustee is not a member the reporting person’s immediate family, and the trustee has independent authority to vote and dispose of the shares held by the Trust. The Trust was issued 365,369 shares pursuant to the UCC Acquisition. Neither the filing of the Schedule 13D nor any of its contents shall be deemed to constitute an admission that either Mr. D’Loren or D’Loren Realty is the beneficial owner of the securities owned by the Trust for purposes of Section 13(d) of the Exchange Act or for any other purposes, and such beneficial ownership is expressly disclaimed.

	(c)		Not applicable.

	(d)		Not applicable.

	(e)		Not applicable.

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

The following information is hereby added to the existing disclosure in Item 6 of the Schedule 13D:

The Reporting Persons do not have any contracts, arrangements, understandings or relationships with any other person with respect to the securities of the Issuer; except the TAF Voting Agreements disclosed in Item 4 of this Schedule 13D which are hereby incorporated by reference.

Item 7. Material to be filed as Exhibits.

Exhibit 1 Joint Filing Agreement dated November 28, 2006, by and between Robert W. D’Loren and D’Loren Realty, LLC.

Exhibit 2 Voting Agreement dated November 7, 2006, by and between the Issuer and Robert Corliss.

Exhibit 3 Voting Agreement dated November 7, 2006, by and between the Issuer and AFMA.

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.


		D’LOREN REALTY, LLC

		/s/ Robert W. D’Loren

		By: Robert W. D’Loren
		Its: Member-Manager

		/s/ Robert W. D’Loren

		Robert W. D’Loren

EX-1 2 w27565exv1.htm EXHIBIT 1 exv1

Exhibit 1

JOINT FILING AGREEMENT

This Joint Filing Agreement (this “Agreement”) is entered into as of November 28, 2006 by and between D’Loren Realty, LLC, a limited liability company organized under the laws of the State of New York (“D’Loren Realty”), and Robert W. D’Loren, an individual United States citizen (“D’Loren”).

D’Loren Realty and D’Loren 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 $0.01 per share, of NexCen Brands, 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.


		D’LOREN REALTY, LLC

		/s/ Robert W. D’Loren

		By: Robert W. D’Loren
		Its: Member-Manager

		/s/ Robert W. D’Loren

		Robert W. D’Loren

EX-2 3 w27565exv2.htm EXHIBIT 2 exv2

Exhibit 2

VOTING AGREEMENT

This VOTING AGREEMENT (this “Agreement”), dated as of November 7, 2006, is entered into by and between Aether Holdings, Inc., a Delaware corporation (the “Company”) and Robert J. Corliss (“Corliss” or the “Stockholder”).

A. The Company, Athlete’s Foot Marketing Associates, LLC (“AFMA”), NexCen Franchise Brands, Inc., a Delaware corporation (“Brands”), NexCen Franchise Management, Inc., a Delaware corporation (“Management”), Athlete’s Foot Brands, LLC, a Delaware limited liability company (“Brands”), The Athlete’s Foot Marketing Support Fund, LLC, a Georgia limited liability company (‘Support Fund”), and Corliss, Donald Camacho, Timothy Brannon and Martin Amschler have entered into that certain Equity Interest and Asset Purchase Agreement, dated as of August 21, 2006 (the “Purchase Agreement”), pursuant to which AFMA has agreed to sell to Brands and Management, respectively (i) all of the outstanding equity interests in each of Brands and Support Fund, each a wholly-owned subsidiary of AFMA (such outstanding equity interests of each of Brands and Support Fund collectively, the “Interests”); and (ii) all of AFMA’s right, title and interest in and to certain software and other assets of AFMA (collectively, the “Transferred Assets”).

B. In connection with the employment of Corliss as the President and Chief Executive Officer of the retail and international franchise division of Brands, the Company has agreed to issue a warrant (the “Warrant”) to Corliss to purchase 500,000 shares of the Company’s common stock, $1.00 par value per share (the “Common Stock”), and in respect thereof Corliss desires and agrees to be bound by the restrictions on transfer, and to vote all shares of Common Stock issued to Corliss upon exercise of the Warrant (whether partially or fully exercised), as set forth herein.

NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are 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 Purchase Agreement or that certain Employment Agreement, dated as of August 21, 2006, by and between Brands and Corliss (as amended, the “Employment Agreement”), as applicable):

1. Agreement to Vote Shares; Irrevocable Proxy. The Stockholder hereby appoints Robert D’Loren and any designee of Robert D’Loren appointed with the consent of the Board of Directors of the Company (collectively, Robert D’Loren and such designees are hereinafter referred to collectively as the “Proxy Holder”) his proxy and attorney-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 shares of Common Stock issued to the Stockholder upon full or partial exercise of the Warrant (the “Shares”). The Stockholder 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 the Stockholder 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 the Stockholder with respect to the matters contemplated hereunder. The power of attorney granted by the Stockholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of the Stockholder. The proxy and power of attorney granted hereunder shall terminate upon the termination of this Agreement. All parties hereto acknowledge and agree that the Proxy Holder shall, and the Stockholder hereby irrevocably

consents to, vote all Shares in favor of matters recommended or approved by the Board of Directors of the Company, or, if such matters are neither recommended nor approved by the Board of Directors of the Company, then at the direction of the Board of Directors of the Company, in respect of all matters for which stockholder approval is sought or required. Notwithstanding anything to the contrary, the provisions of this Section 1 shall not apply with respect to any Shares that have been validly Transferred (as hereinafter defined) in compliance with Section 4(b) or 4(c) hereof by the Stockholder (or its permitted transferees or successors in interest) to a Person that is not an Affiliate (as defined in Section 10(e) hereof) of the Stockholder.

2. No Voting Trusts or Other Arrangements. The Stockholder agrees that he will not, and will not permit any Affiliate, to grant any proxies with respect to his Shares or subject any of his Shares to any arrangement with respect to the voting of the Shares other than this Agreement.

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

4. Transfer and Encumbrance.

(a) The Stockholder represents and warrants that (as and when the Warrant is exercised and the Shares in respect thereof are issued to Stockholder): (i) all Shares are free and clear of all liens, claims, charges, security interests or other encumbrances, other than those that may be created by the Warrant and this Agreement, (ii) there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which the 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 such Shares, other than this Agreement, (iii) the Stockholder has full power and authority to enter into, execute and deliver this Agreement and to perform fully the Stockholder’s obligations hereunder and (iv) this Agreement constitutes the legal and valid and binding obligation of the Stockholder in accordance with its terms.

(b) For the period from the date of the first exercise of the Warrant by the Stockholder (the “First Exercise Date”) until the first anniversary of the date thereof (the “Free Resale Date”), the Stockholder shall not, and shall not agree to, (i) sell, transfer, hypothecate, negotiate, pledge, assign, encumber, grant any option, warrant or other right to purchase, or otherwise dispose of, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of ((i) and (ii) collectively, “Transfer”) such number of Shares equal to 75% of the aggregate number of Shares that are issuable upon exercise of the Warrant in full (collectively, the “Restricted Shares”) except (x) to one or more members of the Immediate Family of the Stockholder or a trust or other special purpose vehicle solely for the benefit thereof (but then only if, as a precondition to such transfer, the Stockholder has delivered to the Company an opinion of counsel in form and substance satisfactory to the Company and its counsel, to the effect that no registration of the Shares under the Securities Act is required). For the avoidance of doubt, the parties acknowledge and agree that if Stockholder partially exercises the Warrant such that the Stockholder has been issued, in aggregate, fewer than 75% of the Shares issuable to the Stockholder upon exercise in full of the Warrant, then all of such Shares as are issued to Stockholder upon such partial exercise(s) of the Warrant shall be deemed to be “Restricted Shares”.

(c) From and after the First Exercise Date (for Shares that are not Restricted Shares) or after the Free Resale Date (for the Restricted Shares), the Stockholder shall not Transfer any Shares except (i) pursuant to a valid and effective registration statement under the Securities Act, as contemplated in the Warrant, and in compliance with the registration and prospectus delivery requirements of the Securities Act and with applicable state securities laws; (ii) in compliance with the resale provisions of Rule 144 under the Securities Act (or any successor provision thereto); (iii) pursuant to a Transfer that does not require registration of the subject Shares under the Securities Act, provided further that such Stockholder has provided an opinion of counsel, in form and substance satisfactory to the Company and its counsel, to the effect that no registration of the Shares under the Securities Act is required; provided further, that for a period of two years after the Free Resale Date under no circumstances shall such Stockholder Transfer, in any one calendar quarter (prorated for partial calendar quarters), more than 25% of the Shares issuable to the Stockholder upon execution in full of the Warrant.

(d) Without limitation of Sections 4(b) and 4(c) hereof, the Stockholder agrees that any purported Transfer to an Affiliate of the Stockholder shall be effective only if, as a precondition thereto, 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 as if such transferee were the “Stockholder” hereunder. Any purported Transfer in violation of this Section 4 shall be null and void ab initio.

5. New Shares. The Stockholder hereby agrees that all Shares that the Stockholder receives as a result of any stock splits, combinations, stock dividends or reclassifications of Shares (all such Shares collectively, “New Shares”), shall be subject to the terms of this Agreement to the same extent as if they constituted the 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 hereto. 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 marked for next day delivery 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:

		Aether Holdings, Inc.
		1330 Avenue of the Americas, 40^th Floor
		New York, New York 10019
		Attention: James Haran
		Fax: (212) 277-1160

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

		Baker & McKenzie LLP
		1114 Avenue of the Americas
		New York, NY 10036
		Attention: Richard D. Rudder, Esq.
		Fax: (212) 310-1704

		If to Robert J. Corliss:

		Mr. Robert J. Corliss
		5053 Legends Drive
		Braselton. GA 30517

9. Legends.

(a) In addition to other legends that are required, either by agreement or by federal or state securities laws, each certificate representing any of the Shares shall be marked by the Company with a legend substantially in the following form:


		THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION HEREOF. THESE SECURITIES MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR ASSIGNED EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ALL OTHER APPLICABLE STATE SECURITIES LAWS.

(b) In addition to other legends that are required, either by agreement or by federal or state securities laws, each certificate representing any of the Restricted Shares shall be marked by the Company with a legend substantially in the following form:


		THE SALE, TRANSFER, HYPOTHECATION, NEGOTIATION, PLEDGE, ASSIGNMENT, ENCUMBRANCE, GRANT OF ANY OPTION, WARRANT OR OTHER RIGHT TO PURCHASE, OR OTHER DISPOSITION (COLLECTIVELY, “TRANSFER”) OF THE SHARES EVIDENCED BY THIS CERTIFICATE ARE RESTRICTED BY AND ARE SUBJECT TO RESTRICTIONS AND A GRANT OF PROXY PURSUANT TO THAT CERTAIN VOTING AGREEMENT BY AND BETWEEN THE COMPANY, AND ATHLETE’S FOOT MARKETING ASSOCIATES, LLC, DATED AS OF NOVEMBER 7, 2006 (THE “VOTING AGREEMENT”), COPIES OF WHICH


		MAY BE OBTAINED FROM THE SECRETARY OF AETHER HOLDINGS, INC. NO TRANSFER OF THE SHARES MAY BE MADE UNLESS SPECIFIC CONDITIONS OF THE VOTING AGREEMENT ARE SATISFIED.

(c) It is understood and agreed that the reference to restrictions arising under the Securities Act in the above legends will be removed by delivery of substitute certificate(s) without such reference, if the Shares have been sold in compliance with the registration and prospectus delivery requirements of the Securities Act and with the applicable state securities laws, such Shares have been sold in reliance on and in accordance with Rule 144 under the Securities Act, or the relevant Stockholder has delivered to the Company an opinion of counsel in form and substance reasonably satisfactory to Company and its counsel, to the effect that such legend is not required for purposes of the Securities Act. It is understood and agreed that the reference to restrictions arising under this Agreement in the above legends will be removed by delivery of substitute certificate(s) without such reference, if the Shares have been sold or transferred in compliance with this Agreement.

10. 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 8 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.

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 earlier of (i) the third anniversary of the date that all Shares issuable upon the exercise in full of the Warrant have been issued to the Stockholder and (ii) the date by which the sale, transfer or other disposition of all Shares by the Stockholder to Persons that are not Affiliates shall have occurred, in compliance with Section 4 hereof. For purposes hereof, the term “Person” shall mean“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. For purposes hereof, 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. For purposes hereof, “Immediate Family” of a Person includes such 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.

(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) 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 10(g) shall be null and void.

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


	AETHER HOLDINGS, INC.
	By:	/s/
	Name:
	Title:


	ROBERT J. CORLISS
	/s/

EX-3 4 w27565exv3.htm EXHIBIT 3 exv3

Exhibit 3

VOTING AGREEMENT

This VOTING AGREEMENT (this “Agreement”), dated as of November 7, 2006, is entered into by and between Aether Holdings, Inc., a Delaware corporation (the “Company”) and Athlete’s Foot Marketing Associates, LLC (“AFMA” or the “Stockholder”).

A. The Company, AFMA, NexCen Franchise Brands, Inc., a Delaware corporation (“Brands”), NexCen Franchise Management, Inc., a Delaware corporation (“Management”), Athlete’s Foot Brands, LLC, a Delaware limited liability company (“Brands”), The Athlete’s Foot Marketing Support Fund, LLC, a Georgia limited liability company (“Support Fund”), and Robert J. Corliss, Donald Camacho, Timothy Brannon and Martin Amschler have entered into that certain Equity Interest and Asset Purchase Agreement, dated as of August 21, 2006 (the “Purchase Agreement”), pursuant to which AFMA has agreed to sell to Brands and Management, respectively (i) all of the outstanding equity interests in each of Brands and Support Fund, each a wholly-owned subsidiary of AFMA (such outstanding equity interests of each of Brands and Support Fund collectively, the “Interests”); and (ii) all of AFMA’s right, title and interest in and to certain software and other assets of AFMA (collectively, the “Transferred Assets”).

B. As partial consideration for the Interests and Transferred Assets, on the terms and conditions set forth in the Purchase Agreement, the Company has agreed to issue to AFMA shares of the Company’s common stock, $1.00 par value per share (the “Common Stock”), and in respect thereof the Stockholder desires and agrees to be bound by the restrictions on transfer, and to vote all shares of Common Stock, as set forth herein.

NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are 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 Purchase Agreement or that certain Escrow Agreement, dated as of the date hereof, by and among the Company, Wilmington Trust Company, Brands, Management and AFMA (the “Escrow Agreement”), as applicable):

1. Agreement to Vote Shares; Irrevocable Proxy. The Stockholder hereby appoints Robert D’Loren and any designee of Robert D’Loren appointed with the consent of the Board of Directors of the Company (collectively, Robert D’Loren and such designees are hereinafter referred to collectively as the “Proxy Holder”) its proxy and attorney-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 shares constituting the Consideration Shares (including, without limitation, the Initial Escrow Shares and the Additional Escrow Shares) and the True Up Shares, whether now or hereafter acquired by the Stockholder (the “Shares”). The Stockholder 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 the Stockholder 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 the Stockholder with respect to the matters contemplated hereunder. The power of attorney granted by the Stockholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of the Stockholder. The proxy and power of attorney granted hereunder shall terminate upon the termination of this Agreement. All parties hereto acknowledge and agree that the Proxy Holder shall, and the Stockholder hereby

irrevocably consents to, vote all Shares in favor of matters recommended or approved by the Board of Directors of the Company, or, if such matters are neither recommended nor approved by the Board of Directors of the Company, then at the direction of the Board of Directors of the Company, in respect of all matters for which stockholder approval is sought or required. Notwithstanding anything to the contrary, the provisions of this Section 1 shall not apply with respect to any Shares that have been validly Transferred (as hereinafter defined) in compliance with Section 4(b) or 4(c) hereof by the Stockholder (or its permitted transferees or successors in interest) to a Person that is not an Affiliate (as defined in Section 10(e) hereof) of the Stockholder.

2. No Voting Trusts or Other Arrangements. The Stockholder agrees that it will not, and will not permit any Affiliate, to grant any proxies with respect to the Shares or subject any of the Shares to any arrangement with respect to the voting of the Shares other than this Agreement.

3. Stockholder Capacity. Notwithstanding anything to the contrary set forth herein, the Stockholder is entering into this Agreement solely in the Stockholder’s capacity as the holder of the Shares and nothing in this Agreement shall prevent the Stockholder from taking any action or omitting to take any action in the Stockholder’s capacity (if an individual) as an officer or employee of the Company or any of its Affiliates (as defined below), in either case as applicable or as may become applicable to such Stockholder.

4. Transfer and Encumbrance.

(a) The Stockholder represents and warrants that (i) the Shares are free and clear of all liens, claims, charges, security interests or other encumbrances, other than those that may be created by the Purchase Agreement, the Escrow Agreement and this Agreement, (ii) there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which the 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 such Shares, other than this Agreement, (iii) the Stockholder has full power and authority to enter into, execute and deliver this Agreement and to perform fully the Stockholder’s obligations hereunder and (iv) this Agreement constitutes the legal, valid and binding obligation of the Stockholder in accordance with its terms.

(b) For the period from the date hereof until the first anniversary of the date hereof (the “Free Resale Date”), the Stockholder shall not, and shall not agree to, (i) sell, transfer, hypothecate, negotiate, pledge, assign, encumber, grant any option, warrant or other right to purchase, or otherwise dispose of, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of ((i) and (ii) collectively, “Transfer”) such number of Shares equal to 75% of the aggregate number of Shares (the “Restricted Shares”) except (x) to one or more partners or members of the Stockholder or to an affiliated corporation under common control with the Stockholder (but then only if, as a precondition to such transfer, the Stockholder has delivered to the Company an opinion of counsel in form and substance satisfactory to the Company and its counsel, to the effect that no registration of the Shares under the Securities Act is required), subject further to the restrictions set forth in the Escrow Agreement or (y) to the Company, in the case of Initial Escrow Shares or Additional Escrow Shares Transferred pursuant to the Escrow Agreement.

(c) From and after the date hereof (for Shares that are not Restricted Shares) or after the Free Resale Date (for the Restricted Shares), the Stockholder (or its permitted transferees or successors in interest, as applicable) shall not Transfer any Shares except (i) as contemplated by the Registration

Rights Agreement and Escrow Agreement, and in compliance with the registration and prospectus delivery requirements of the Securities Act and with the applicable state securities laws; (ii) in compliance with the resale provisions of Rule 144 under the Securities Act (or any successor provision thereto), subject to restrictions imposed by the Escrow Agreement; (iii) pursuant to a Transfer that does not require registration of the subject Shares under the Securities Act, provided further that the Stockholder has provided an opinion of counsel, in form and substance satisfactory to the Company and its counsel, to the effect that no registration of the Shares under the Securities Act is required, subject to restrictions imposed by the Escrow Agreement; or (iv) to the Company, in the case of Initial Escrow Shares or Additional Escrow Shares Transferred pursuant to the Escrow Agreement; provided further, that under no circumstances shall the Stockholder Transfer, in any one calendar quarter (prorated for partial calendar quarters), more than 25% of the aggregate number of Consideration Shares and True Up Shares (as may be adjusted for stock splits, combinations, stock dividends or reclassifications) previously issued to Stockholder pursuant to the Purchase Agreement.

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.


If to the Company or the Proxy Holder:

		Aether Holdings, Inc.
		1330 Avenue of the Americas, 40^th Floor
		New York, New York 10019
		Attention: James Haran
		Fax: (212) 277-1160

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

		Baker & McKenzie LLP
		1114 Avenue of the Americas
		New York, NY 10036
		Attention: Richard D. Rudder, Esq.
		Fax: (212) 310-1704

If to the Stockholder:

		Athlete’s Foot Marketing Associates, LLC
		1412 Oakbrook Drive
		Suite 100
		Norcross, Georgia 30093
		Attention: Robert Corliss
		Fax: (770) 514-4905

9. Legends.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION HEREOF. THESE SECURITIES MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR ASSIGNED EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ALL OTHER APPLICABLE STATE SECURITIES LAWS.

REGISTRATION RIGHTS AGREEMENT ENTERED INTO BETWEEN AETHER HOLDINGS, INC. AND ATHLETE’S FOOT MARKETING ASSOCIATES, LLC, DATED AS OF NOVEMBER 7, 2006 (THE “REGISTRATION RIGHTS AGREEMENT”) AND ARE SUBJECT TO RESTRICTIONS AND A GRANT OF PROXY PURSUANT TO THAT CERTAIN VOTING AGREEMENT BY AND BETWEEN THE COMPANY, AND ATHLETE’S FOOT MARKETING ASSOCIATES, LLC, DATED AS OF NOVEMBER 7, 2006 (THE “VOTING AGREEMENT”), COPIES OF EACH OF WHICH MAY BE OBTAINED FROM THE SECRETARY OF AETHER HOLDINGS, INC. NO TRANSFER OF THE SHARES MAY BE MADE UNLESS SPECIFIC CONDITIONS OF THE REGISTRATION RIGHTS AGREEMENT AND VOTING AGREEMENT ARE SATISFIED.

(c) In addition to the foregoing, all Shares constituting Escrow Shares or Additional Escrow Shares shall be marked by the Company with a legend substantially in the following form:

THE SALE, TRANSFER, HYPOTHECATION, NEGOTIATION, PLEDGE, ASSIGNMENT, ENCUMBRANCE, GRANT OF ANY OPTION, WARRANT OR OTHER RIGHT TO PURCHASE, OR OTHER DISPOSITION (COLLECTIVELY, “TRANSFER”) OF THE SHARES EVIDENCED BY THIS CERTIFICATE ARE RESTRICTED BY AND ARE SUBJECT TO ALL OF THE TERMS, CONDITIONS AND PROVISIONS OF THAT CERTAIN ESCROW AGREEMENT ENTERED INTO BY AND AMONG WILMINGTON TRUST COMPANY, AETHER HOLDINGS, INC. AND ATHLETE’S FOOT MARKETING ASSOCIATES, LLC, DATED AS OF NOVEMBER 7, 2006 (THE “ESCROW AGREEMENT”), A COPY OF WHICH MAY BE OBTAINED FROM THE SECRETARY OF AETHER HOLDINGS, INC. NO TRANSFER OF THE SHARES MAY BE MADE UNLESS SPECIFIC CONDITIONS OF THE ESCROW AGREEMENT ARE SATISFIED.

(d) It is understood and agreed that the reference to restrictions arising under the Securities Act in the above legends will be removed by delivery of substitute certificate(s) without such reference, if the Shares have been sold in compliance with the registration and prospectus delivery requirements of the Securities Act and with the applicable state securities laws, such Shares have been sold in reliance on and in accordance with Rule 144 under the Securities Act, or Stockholder has delivered to the Company an opinion of counsel in form and substance reasonably satisfactory to Company and its counsel, to the effect that such legend is not required for purposes of the Securities Act. It is understood and agreed that the reference to restrictions arising under the Registration Rights Agreement and this Agreement in the above legends will be removed by delivery of substitute certificate(s) without such reference, if the Shares have been sold or transferred in compliance with the Registration Rights Agreement and this Agreement. It is understood and agreed that the reference to restrictions arising under the Escrow Agreement in the above legends will be removed by delivery of substitute certificate(s) without such reference, if the Shares have been released from escrow pursuant to the Escrow Agreement.

10. 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 8 or in such other manner as may be permitted by law shall be valid and sufficient service thereof.

(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.

(e) This Agreement shall terminate automatically when the sale, transfer or other disposition of all Shares by the Stockholder to Persons that are not Affiliates shall have occurred, in compliance with Section 4 hereof. For purposes hereof, 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. For purposes hereof, 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. For purposes hereof, “Immediate Family” of a Person includes such 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.

(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.

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


	AETHER HOLDINGS, INC.
	By:	/s/
	Name:
	Title:

	ATHLETE’S FOOT MARKETING ASSOCIATES, LLC
	By:	/s/
	Name:
	Title:

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