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EXHIBIT 5
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037-1420
Telephone (202) 663-6000
Facsimile (202) 663-6363
December 19, 2000
Aether Systems, Inc.
11460 Cronridge Drive, Suite 106
Owings Mills, Maryland 21117
Re: Aether Systems, Inc. Registration Statement on Form S-8
Dear Ladies and Gentlemen:
We have acted as counsel to Aether Systems, Inc., a Delaware corporation
(the "Company"), in connection with a registration statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended. The
Registration Statement relates to the registration of the shares of Common Stock
of the Company, par value $0.01 per share (the "Shares"), to be issued under the
Company's 1999 Equity Incentive Plan (the "1999 Plan").
For the purposes of this opinion, we have examined and relied upon the
following documents, as certified by the Secretary of the Company on December
19, 2000, as then being complete, accurate and in effect:
(1) a copy of the 1999 Plan; and
(2) a copy of the Resolutions of the Board of Directors dated
September 20, 1999 adopting the Plan and of the Resolutions of the Board of
Directors dated May 22, 2000 amending the Plan.
In our examination of those documents, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, and the conformity with the original
documents of all documents submitted to us as certified, telecopied or
reproduced copies. We have assumed the accuracy of the foregoing certifications,
on which we are relying, and have made no independent investigation thereof.
Based solely upon the foregoing, and upon our examination of such
questions of law and statutes as we have considered necessary or appropriate,
and subject to the assumptions, qualifications, limitations, and exceptions set
forth in this letter, we are of the opinion that: (a) the Shares have been
lawfully and duly authorized; and (b) such Shares will be validly issued, fully
paid, and nonassessable upon payment of the purchase price, if any, established
under the 1999 Plan.
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This opinion is limited to the laws of the United States and the General
Corporation Law of Delaware. Although we do not hold ourselves out as being
experts in the Laws of Delaware, we have made an investigation of such laws to
the extent necessary to render our opinion. Our opinion is rendered only with
respect to the laws and the rules, regulations, and orders thereunder that are
currently in effect.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion. This opinion has been prepared for
your use in connection with the filing of the Registration Statement on or about
December 19, 2000, and should not be quoted in whole or in part or otherwise be
referred to, nor otherwise be filed with or furnished to any governmental agency
or other person or entity, without our express prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
WILMER, CUTLER & PICKERING
By: /s/ R. Scott Kilgore
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R. Scott Kilgore, a partner
