-----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, KVpZ5v0LfwRxKMIZHjQk0al4rd5B21qHIJdPV6Zk8J+Mg9eFcnI/6HhofnrAt6T9 81j2wGfLl4zCtBjid2MAOg== 0001015402-02-001134.txt : 20020415 0001015402-02-001134.hdr.sgml : 20020415 ACCESSION NUMBER: 0001015402-02-001134 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20020408 EFFECTIVENESS DATE: 20020408 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NETTAXI INC CENTRAL INDEX KEY: 0001084876 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 820486102 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-85720 FILM NUMBER: 02603732 BUSINESS ADDRESS: STREET 1: 1696 DELL AVE CITY: CAMPBELL STATE: CA ZIP: 95008 BUSINESS PHONE: 4088799880 S-8 1 doc1.txt AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 8, 2002 REGISTRATION NO. 333-__________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ____________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ____________________ NETTAXI.COM ----------- (Exact Name of Registrant as Specified in Its Charter) NEVADA 7370 82-0486102 (State or Other Jurisdiction of (Primary Standard (I.R.S. Employer Incorporation or Organization) Industrial Identification Number) Classification Code) 1875 S. Bascom Avenue No. 116 CAMPBELL, CALIFORNIA 95008 (408) 879-9880 (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Executive Offices) Warrant Agreements to Purchase Common Stock ROBERT A. ROSITANO, JR. DEAN ROSITANO NETTAXI.COM 33 FIRST STREET CAMPBELL, CALIFORNIA 95008 (408) 879-9880 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Co-Agents for Service) ____________________ COPY TO: JAMES C. CHAPMAN, ESQ. SILICON VALLEY LAW GROUP 152 NORTH THIRD STREET, SUITE 900 SAN JOSE, CALIFORNIA 95112 (408) 286-6100 If any of the securities being registered on this Form are being offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. [X] 1
CALCULATION OF REGISTRATION FEE TITLE OF AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF SECURITIES REGISTERED MAXIMUM MAXIMUM REGISTRATION TO BE OFFERING AGGREGATE FEE REGISTERED PRICE OFFERING PRICE PERUNIT - --------------- ----------------- ---------- ---------------- -------------- COMMON STOCK, 350,000 SHARES $ 0.35 (1) $ 122,500 (1) $ 30.63 (1) .001 PAR VALUE - --------------- ----------------- ---------- ---------------- -------------- COMMON STOCK, 1,500,000 SHARES $ 0.13 (1) $ 195,000 (1) $ 48.75 (1) .001 PAR VALUE - --------------- ----------------- ---------- ---------------- -------------- COMMON STOCK, 2,000,000 SHARES $ 0.20 (1) $ 400,000 (1) $ 100.00 (1) .001 PAR VALUE - --------------- ----------------- ---------- ---------------- -------------- COMMON STOCK, 9,922,500 SHARES $ 0.21 (1) $ 2,083,725(1) $ 520.93 (1) .001 PAR VALUE - --------------- ----------------- ---------- ---------------- -------------- TOTAL 13,772,500 SHARES $ 2,801,225 $ 700.31 - --------------- ----------------- ---------- ---------------- --------------
(1) Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(g). ____________________ PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS The documents containing the information specified in this Part I are being separately provided to the Registrant's employees, officers, directors and consultants as specified by Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by the Registrant with the Securities and Exchange Commission are hereby incorporated by reference in this registration statement: (a) The Registrant's Annual Report on Form 10-K for the year ended December 31, 2001. (b) The description of Common Stock contained in the section of the Registrant's prospectus dated August 2, 2000 filed with the Securities and Exchange Commission pursuant to Rule 424(b) of the Securities Act of 1933, as amended, entitled "Description of Capital Stock". In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Nevada Private Corporation Law provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party, by reason of the fact that such person was an officer or director of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, to: - any action or suit by or in the right of the corporation against expenses, including amounts paid in settlement and attorneys' fees, actually and reasonably incurred, in connection with the defense or settlement believed to be in, or not opposed to, the best interests of 3 the corporation, except that indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction to be liable to the corporation or for amounts paid in settlement to the corporation; and - any other action or suit or proceeding against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement, actually and reasonably incurred, if he or she acted in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, reasonable cause to believe his or her conduct was unlawful. To the extent that a director, officer, employee or agent has been "successful on the merits or otherwise" the corporation must indemnify such person. The articles of incorporation or bylaws may provide that the expenses of officers and directors incurred in defending any such action must be paid as incurred and in advance of the final disposition of such action. The Nevada Private Corporation Law also permits the corporation to purchase and maintain insurance on behalf of the corporation's directors and officers against any liability arising out of their status as such, whether or not the corporation would have the power to indemnify him against such liability. These provisions may be sufficiently broad to indemnify such persons for liabilities arising under the Securities Act. Our articles of incorporation include a provision eliminating the personal liability of directors for breach of fiduciary duty except that such provision will not eliminate or limit any liability which may not be so eliminated or limited under applicable law. We have entered into indemnification agreements with our directors and officers. These agreements are filed as exhibits to our Annual Report on Form 10-K for the year ended December 31, 2001. These agreements provide, in general, that the Registrant will indemnify such directors and officers for, and hold them harmless from and against, any and all amounts paid in settlement or incurred by, or assessed against, such directors and officers arising out of or in connection with the service of such directors and officers as a director or officer of the Registrant or its affiliates to the fullest extent permitted by Nevada law. We maintain liability insurance for our directors and officers covering, subject to exceptions, any actual or alleged negligent act, error, omission, misstatement, misleading statement, neglect or breach of duty by such directors or officers, individually or collectively, in the discharge of their duties in their capacity as directors or officers of the Registrant. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. 4 The following Exhibits are filed as a part of this registration statement: Exhibit Number Description of Exhibit - -------------- ------------------------ 4.6 Warrant Agreement to Purchase Common Stock dated as of April 7, 2001 by and among the Registrant and Mr. Justin Hirsch 4.7 Warrant Agreement to Purchase Common Stock dated as of October 30, 2000 by and among the Registrant and Mr. Michael Gardner 4.8 Warrant Agreement to Purchase Common Stock dated as of April 3, 2002 by and among the Registrant and Mr. Michael Gardner 4.9 Warrant Agreement to Purchase Common Stock dated as of January 9, 2002 by and among the Registrant and Mr. Robert A. Rositano, Jr. 4.10 Warrant Agreement to Purchase Common Stockdated as of January 9, 2002 by and among the Registrant and Mr. Dean Rositano 5.1 Opinion of Silicon Valley Law Group 23.1 Consent of Silicon Valley Law Group (included in Exhibit 5.1) 23.2 Consent of BDO Seidman, LLP 24.1 Power of Attorney (see page 7). ITEM 9. UNDERTAKINGS (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 5 (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Campbell, State of California, on April 8, 2002. NETTAXI.COM By: /s/ ROBERT A. ROSITANO, Jr. ------------------------------- Robert A. Rositano, Jr. Chief Executive Officer POWER OF ATTORNEY Each director and/or officer of the Registrant whose signature appears below hereby appoints Robert A. Rositano and Dean Rositano, and each of them severally, as his attorney-in-fact, to sign in his name and behalf, in any and all capacities stated below, and to file with the Commission any and all amendments, including post-effective amendments, to this registration statement, and the Registrant hereby also appoints each such person as its attorney-in-fact with like authority to sign and file any such amendments in its name and behalf. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. SIGNATURE TITLE DATE - --------- ----- ---- /s/ ROBERT A. ROSITANO, JR Chief Executive Officer, April 8, 2002 - -------------------------- Secretary, Director Robert A. Rositano, Jr. /s/ DEAN ROSITANO President, Chief Operating April 8, 2002 - -------------------------- Officer, Interim Chief Dean Rositano. Financial Officer, Director /s/ ANDREW GARRONI Director April 8, 2002 - -------------------------- Andrew Garroni 7 EXHIBIT INDEX Exhibit Number Description of Exhibit - -------------- ------------------------ 4.6 Warrant Agreement to Purchase Common Stock dated as of April 7, 2001 by and among the Registrant and Mr. Justin Hirsch 4.7 Warrant Agreement to Purchase Common Stock dated as of October 30, 2000 by and among the Registrant and Mr. Michael Gardner 4.8 Warrant Agreement to Purchase Common Stock dated as of April 3, 2002 by and among the Registrant and Mr. Michael Gardner 4.9 Warrant Agreement to Purchase Common Stock dated as of January 9, 2002 by and among the Registrant and Mr. Robert A. Rositano, Jr. 4.10 Warrant Agreement to Purchase Common Stock dated as of January 9, 2002 by and among the Registrant and Mr. Dean Rositano 5.1 Opinion of Silicon Valley Law Group 23.1 Consent of Silicon Valley Law Group (included in Exhibit 5.1) 23.2 Consent of BDO Seidman, LLP 24.1 Power of Attorney (see page II-2). 8 EX-4.6 3 doc2.txt EXHIBIT 4.6 WARRANT AGREEMENT TO PURCHASE COMMON STOCK OF NETTAXI.COM THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR AN EXEMPTION THEREFROM. This Warrant Agreement (the "Agreement") is entered into this 7th day of April, 2001, (the "Effective Date") by and between Nettaxi.com, a Nevada corporation ("Nettaxi") and Mr. Justin Hirsch ("Holder"). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Issuance of Warrants. Nettaxi subject to the terms and conditions ---------------------- hereinafter set forth, hereby issues to Holder warrants (the "Warrants") to purchase One Million Five Hundred Thousand (1,500,000) shares of Nettaxi common stock, $0.001 par value (the "Shares"). The exercise price of the Shares shall be $0.13 per share (the "Exercise Price") subject to adjustment in accordance with Paragraph 5 of this Agreement. 2. Term. The Warrants may be exercised at any time after the Effective Date ---- set forth on the signature page hereof and before April, 2005. 3. Exercise. -------- (a) Holder shall exercise the Warrants granted hereunder, in whole or in part, by delivering to Nettaxi at the office of Nettaxi, or at such other address as Nettaxi may designate by notice in writing to the holder hereof, the notice of Exercise attached hereto as Exhibit A and incorporated herein by --------- reference and a certified check or wire transfer in lawful money of the United States for the Exercise Price for the entire amount of the number of Warrants being exercise. (b) Upon delivery of the items set forth in (a) above, Holder shall be entitled to receive a certificate or certificates representing the Shares. Such Shares shall be validly issued, fully paid and non-assessable. (c) Warrants shall be deemed to have been exercised immediately prior to the close of business on the day of such delivery, and Holder shall be deemed the holder of record of the shares issuable upon such exercise at such time. (d) Upon any partial exercise of the Warrants, at the request of Nettaxi, this Agreement shall be surrendered and a new Agreement evidencing the right to purchase the number of Shares not purchased upon such exercise shall be issued to Holder. 4. Representations and Warranties of Holder. Holder hereby represents and ------------------------------------------ warrants to Nettaxi as follows: (a) Sophistication. Holder has (i) a preexisting personal or business relationship with Nettaxi or one or more of its officers, directors, or control persons; or (ii) by reason of Holder's business or financial experience, or by reason of the business or financial experience or of Holder's financial advisor who is unaffiliated with and who is not compensated, directly or indirectly, by Nettaxi or any affiliate or selling agent of Nettaxi, Holder is capable of evaluating the risks and merits of this investment and of protecting Holder's own interests in connection with this investment. (b) Accredited Investor. Holder is an "accredited investor" as such term is defined under Regulation d of the Securities Act of 1933 as amended (the "Securities Act"). (c) Investment Intent. Holder is purchasing the Shares solely for its own account for investment. Holder has no present intention to resell or distribute the Warrants or the Shares or any portion thereof. The entire legal and beneficial interest of the Warrants is being purchased, and will be held, for Holder's account only, and neither in whole or in part for any other person. (d) Information Concerning Company. Prior to the date hereof, Holder was not a shareholder of Nettaxi. Holder is aware of the business affairs and financial condition of Nettaxi and has acquired sufficient information about Nettaxi to make an informed and knowledgeable decision to purchase the Warrants and the Shares. (e) Economic Risk. Holder realizes that the purchase of the Warrants and the Shares will be a highly speculative investment and involves a high degree of risk. Holder is able, without impairing Purchaser's financial condition, to hold the Warrants and/or the Shares for an indefinite period of time and to suffer a complete loss of Holder's investment. 5. Anti-dilution Adjustments. The Warrants granted hereunder and the -------------------------- Purchase Price thereof shall be subject to adjustment from time to time upon the happening of certain events as set forth below. Notwithstanding the above or any provision of this Agreement, no adjustment shall be made to the Purchase Price or the amount of Warrants granted hereunder once the shares of common stock of Nettaxi have been offered for sale in connection with an initial public offering. 2 (a) Stock Splits and Dividends. If outstanding shares of Nettaxi Common Stock shall be subdivided into a greater number of shares or a dividend in Common Stock shall be paid in respect of Common Stock, the Purchase Price in effect immediately prior to such subdivision or at the record date of such dividend shall simultaneously with the effectiveness of such subdivision or immediately after the record date of such dividend be proportionately reduced. If outstanding shares of Common Stock shall be combined into a smaller number of shares, the Purchase Price in effect immediately prior to such combination shall, simultaneously with the effectiveness of such combination, be proportionately increased. When any adjustment is required to be made in the Purchase Price, the number of Shares purchasable upon the exercise of this Warrant shall be changed to the number determined by dividing (i) an amount equal to the number of shares issuable upon the exercise of this Warrant immediately prior to such adjustment, multiplied by the Purchase Price in effect immediately prior to such adjustment, by (ii) the Purchase Price in effect immediately after such adjustment. (b) Reclassification, Etc. In case there occurs any reclassification or change of the outstanding securities of Nettaxi or of any reorganization of Nettaxi (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) or any similar corporate reorganization on or after the date hereof, then and in each such case Holder, upon the exercise hereof at any time after the consummation of such reclassification, change, or reorganization shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, the stock or other securities or property to which Holder would have been entitled upon such consummation if Holder had exercised this Warrant immediately prior thereto, all subject to further adjustment pursuant to the provisions of this Section. (c) Adjustment Certificate. When any adjustment is required to be made in the Shares or the Purchase Price pursuant to this Section, Nettaxi shall promptly mail to the Holder a certificate setting forth (i) a brief statement of the facts requiring such adjustment, (ii) the Purchase Price after such adjustment and (iii) the kind and amount of stock or other securities or property into which this Warrant shall be exercisable after such adjustment. 6. Reservation of Shares. Nettaxi shall at all times keep reserved a ----------------------- sufficient number of authorized shares of Common Stock, and shall make appropriate provision of their issuance, to provide for the exercise of the Warrants in full. 7. Transferability. The Warrants issued hereunder and any and all Shares --------------- issued upon exercise of the Warrants shall be transferable on the books of Nettaxi by the holder hereof in person or by duly authorized attorney subject to any restrictions imposed by applicable federal or state securities laws. It shall be a further condition to any transfer of the Warrants that the transferor (if any portion of the Warrants are retained) and the transferee shall receive and accept new Warrants, of like tenor and date, executed by Nettaxi, for the portion so transferred and for any portion retained, and shall surrender this Agreement executed. 3 8. Voting. Nothing contained in this Agreement shall be construed as ------ conferring upon Holder the right to vote or to receive dividends or to consent or receive notice as a shareholder in respect to any meeting of shareholders for the election of directors of Nettaxi or for any other purpose not specified herein. 9. Miscellaneous. ------------- (a) Amendment. This Agreement may be amended by written agreement between Nettaxi and Holder. (b) Notice. Any notice, demand or request required or permitted to be given under this Agreement will be in writing and will be deemed sufficient when delivered personally or sent by telegram or forty-eight (48) hours after being deposited in the U.S. mail, as certified or registered mail, or with a commercial courier service, with postage prepaid, and addressed, if to Nettaxi, at its principal place of business, attention the President, and if to Holder, at Holder's address as shown on the stock records of Nettaxi. (c) Further Assurances. Both parties agree to execute any additional documents necessary to carry out the purposes of this Agreement. (d) Severability. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, unenforceable or void, such provision will be enforced to the greatest extent possible and all other provisions of this Agreement will continue in full force and effect. (e) Governing Law. This Agreement will be interpreted and enforced in accordance with California Law as applied to agreements made and performed in California. (f) Survival. The representations and warranties, of the parties hereto set forth in this Agreement shall survive the closing and consummation of the transactions contemplated hereby for a period of three (3) years from the date hereof. (g) Entire Agreement; Successors and Assigns. This Agreement and the documents and instruments attached hereto constitute the entire agreement between Holder and Nettaxi relative to the subject matter hereof. Any previous agreements between the parties are superseded by this Agreement. Subject to any exceptions specifically set forth in this Agreement, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective executors, administrators, heirs, successors and assigns of the parties. (h) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 4 (i) Headings. The headings of the Paragraphs of this Agreement are for convenience and shall not by themselves determine the interpretation of this Agreement. (j) Attorney Fees. If any action is brought to interpret or enforce the terms of this Agreement, the prevailing party in such action shall be entitled to recover its attorneys' fees and costs incurred in connection with such action. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed and delivered by their duly authorized officers as of the Effective Date. NETTAXI NETTAXI.COM By: /s/ Robert A. Rositano, Jr. ---------------------------- Its: Chief Executive Officer HOLDER: /s/ Justin Hirsch ------------------- Justin Hirsch 5 EX-4.7 4 doc3.txt EXHIBIT 4.7 WARRANT AGREEMENT TO PURCHASE COMMON STOCK OF NETTAXI.COM THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR AN EXEMPTION THEREFROM. This Warrant Agreement (the "Agreement") is entered into this 30th day of October, 2000, (the "Effective Date") by and between Nettaxi.com, a Nevada corporation ("Nettaxi") and Mr. Michael Garnder ("Holder"). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Issuance of Warrants. Nettaxi subject to the terms and conditions ---------------------- hereinafter set forth, hereby issues to Holder warrants (the "Warrants") to purchase Three Hundred Fifty Thousand (350,000) shares of Nettaxi common stock, $0.001 par value (the "Shares"). The exercise price of the Shares shall be $0.35 per share (the "Exercise Price") subject to adjustment in accordance with Paragraph 5 of this Agreement. 2. Term. The Warrants may be exercised at any time after the Effective Date ---- set forth on the signature page hereof and before October, 2005. 3. Exercise. -------- (a) Holder shall exercise the Warrants granted hereunder, in whole or in part, by delivering to Nettaxi at the office of Nettaxi, or at such other address as Nettaxi may designate by notice in writing to the holder hereof, the notice of Exercise attached hereto as Exhibit A and incorporated herein by --------- reference and a certified check or wire transfer in lawful money of the United States for the Exercise Price for the entire amount of the number of Warrants being exercise. (b) Upon delivery of the items set forth in (a) above, Holder shall be entitled to receive a certificate or certificates representing the Shares. Such Shares shall be validly issued, fully paid and non-assessable. (c) Warrants shall be deemed to have been exercised immediately prior to the close of business on the day of such delivery, and Holder shall be deemed the holder of record of the shares issuable upon such exercise at such time. (d) Upon any partial exercise of the Warrants, at the request of Nettaxi, this Agreement shall be surrendered and a new Agreement evidencing the right to purchase the number of Shares not purchased upon such exercise shall be issued to Holder. 4. Representations and Warranties of Holder. Holder hereby represents and ------------------------------------------ warrants to Nettaxi as follows: (a) Sophistication. Holder has (i) a preexisting personal or business relationship with Nettaxi or one or more of its officers, directors, or control persons; or (ii) by reason of Holder's business or financial experience, or by reason of the business or financial experience or of Holder's financial advisor who is unaffiliated with and who is not compensated, directly or indirectly, by Nettaxi or any affiliate or selling agent of Nettaxi, Holder is capable of evaluating the risks and merits of this investment and of protecting Holder's own interests in connection with this investment. (b) Accredited Investor. Holder is an "accredited investor" as such term is defined under Regulation d of the Securities Act of 1933 as amended (the "Securities Act"). (c) Investment Intent. Holder is purchasing the Shares solely for its own account for investment. Holder has no present intention to resell or distribute the Warrants or the Shares or any portion thereof. The entire legal and beneficial interest of the Warrants is being purchased, and will be held, for Holder's account only, and neither in whole or in part for any other person. (d) Information Concerning Company. Prior to the date hereof, Holder was not a shareholder of Nettaxi. Holder is aware of the business affairs and financial condition of Nettaxi and has acquired sufficient information about Nettaxi to make an informed and knowledgeable decision to purchase the Warrants and the Shares. (e) Economic Risk. Holder realizes that the purchase of the Warrants and the Shares will be a highly speculative investment and involves a high degree of risk. Holder is able, without impairing Purchaser's financial condition, to hold the Warrants and/or the Shares for an indefinite period of time and to suffer a complete loss of Holder's investment. 5. Anti-dilution Adjustments. The Warrants granted hereunder and the -------------------------- Purchase Price thereof shall be subject to adjustment from time to time upon the happening of certain events as set forth below. Notwithstanding the above or 2 any provision of this Agreement, no adjustment shall be made to the Purchase Price or the amount of Warrants granted hereunder once the shares of common stock of Nettaxi have been offered for sale in connection with an initial public offering. (a) Stock Splits and Dividends. If outstanding shares of Nettaxi Common Stock shall be subdivided into a greater number of shares or a dividend in Common Stock shall be paid in respect of Common Stock, the Purchase Price in effect immediately prior to such subdivision or at the record date of such dividend shall simultaneously with the effectiveness of such subdivision or immediately after the record date of such dividend be proportionately reduced. If outstanding shares of Common Stock shall be combined into a smaller number of shares, the Purchase Price in effect immediately prior to such combination shall, simultaneously with the effectiveness of such combination, be proportionately increased. When any adjustment is required to be made in the Purchase Price, the number of Shares purchasable upon the exercise of this Warrant shall be changed to the number determined by dividing (i) an amount equal to the number of shares issuable upon the exercise of this Warrant immediately prior to such adjustment, multiplied by the Purchase Price in effect immediately prior to such adjustment, by (ii) the Purchase Price in effect immediately after such adjustment. (b) Reclassification, Etc. In case there occurs any reclassification or change of the outstanding securities of Nettaxi or of any reorganization of Nettaxi (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) or any similar corporate reorganization on or after the date hereof, then and in each such case Holder, upon the exercise hereof at any time after the consummation of such reclassification, change, or reorganization shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, the stock or other securities or property to which Holder would have been entitled upon such consummation if Holder had exercised this Warrant immediately prior thereto, all subject to further adjustment pursuant to the provisions of this Section. (c) Adjustment Certificate. When any adjustment is required to be made in the Shares or the Purchase Price pursuant to this Section, Nettaxi shall promptly mail to the Holder a certificate setting forth (i) a brief statement of the facts requiring such adjustment, (ii) the Purchase Price after such adjustment and (iii) the kind and amount of stock or other securities or property into which this Warrant shall be exercisable after such adjustment. 6. Reservation of Shares. Nettaxi shall at all times keep reserved a ----------------------- sufficient number of authorized shares of Common Stock, and shall make appropriate provision of their issuance, to provide for the exercise of the Warrants in full. 7. Transferability. The Warrants issued hereunder and any and all Shares --------------- issued upon exercise of the Warrants shall be transferable on the books of Nettaxi by the holder hereof in person or by duly authorized attorney subject to any restrictions imposed by applicable federal or state securities laws. It shall be a further condition to any transfer of the Warrants that the transferor (if any portion of the Warrants are retained) and the transferee shall receive 3 and accept new Warrants, of like tenor and date, executed by Nettaxi, for the portion so transferred and for any portion retained, and shall surrender this Agreement executed. 8. Voting. Nothing contained in this Agreement shall be construed as ------ conferring upon Holder the right to vote or to receive dividends or to consent or receive notice as a shareholder in respect to any meeting of shareholders for the election of directors of Nettaxi or for any other purpose not specified herein. 9. Miscellaneous. ------------- (a) Amendment. This Agreement may be amended by written agreement between Nettaxi and Holder. (b) Notice. Any notice, demand or request required or permitted to be given under this Agreement will be in writing and will be deemed sufficient when delivered personally or sent by telegram or forty-eight (48) hours after being deposited in the U.S. mail, as certified or registered mail, or with a commercial courier service, with postage prepaid, and addressed, if to Nettaxi, at its principal place of business, attention the President, and if to Holder, at Holder's address as shown on the stock records of Nettaxi. (c) Further Assurances. Both parties agree to execute any additional documents necessary to carry out the purposes of this Agreement. (d) Severability. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, unenforceable or void, such provision will be enforced to the greatest extent possible and all other provisions of this Agreement will continue in full force and effect. (e) Governing Law. This Agreement will be interpreted and enforced in accordance with California Law as applied to agreements made and performed in California. (f) Survival. The representations and warranties, of the parties hereto set forth in this Agreement shall survive the closing and consummation of the transactions contemplated hereby for a period of three (3) years from the date hereof. (g) Entire Agreement; Successors and Assigns. This Agreement and the documents and instruments attached hereto constitute the entire agreement between Holder and Nettaxi relative to the subject matter hereof. Any previous agreements between the parties are superseded by this Agreement. Subject to any exceptions specifically set forth in this Agreement, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective executors, administrators, heirs, successors and assigns of the parties. 4 (h) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (i) Headings. The headings of the Paragraphs of this Agreement are for convenience and shall not by themselves determine the interpretation of this Agreement. (j) Attorney Fees. If any action is brought to interpret or enforce the terms of this Agreement, the prevailing party in such action shall be entitled to recover its attorneys' fees and costs incurred in connection with such action. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed and delivered by their duly authorized officers as of the Effective Date. NETTAXI NETTAXI.COM By: /s/ Robert A. Rositano, Jr. ----------------------------- Its: Chief Executive Officer HOLDER: /s/ Michael Gardner --------------------- Michael Gardner 5 EX-4.8 5 doc4.txt EXHIBIT 4.8 EXHIBIT A --------- FORM OF WARRANT --------------- NEITHER THE WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). NO SALE, TRANSFER OR OTHER DISPOSITION OF THIS WARRANT OR SAID SHARES MAY BE EFFECTED WITHOUT (i) AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, (ii) AN OPINION OF COUNSEL FOR THE PURCHASER, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED OR (iii) RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION TO THE EFFECT THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED. Warrant No.: W-__ WARRANT TO PURCHASE SHARES OF COMMON STOCK ---------------------- THIS CERTIFIES THAT, Michael Gardner ("Purchaser") is entitled to purchase under this Warrant, 9,922,500 shares (as adjusted pursuant to provisions hereof, the "Shares") of Common Stock, of Nettaxi.com, a Nevada corporation (the "Company"), at a price per share of $0.21(the "Warrant Price"), subject to the provisions and upon the terms and conditions hereinafter set forth. 1. Term. Subject to the provisions of Section 2 hereof, this Warrant ---- is exercisable, in whole or in part, at any time and from time to time from and after the Effective Date of the Merger, as defined in the Merger Agreement between the Company, RAE Systems Inc. and RAES Acquisition Corporation (the "Merger Agreement")(the "Date of Issuance") and prior to 5 p.m. New York time on the date three years following the original Date of Issuance of this Warrant (the "Expiration Date"); provided, however, that such Expiration Date shall be extended by any number of days by which Purchaser is unable to sell Shares pursuant to the provisions of Section 5.4 herein. If the Merger does not close, this Warrant shall be null and void. 2. Method of Exercise; Payment; Issuance of New Warrant. This Warrant ---------------------------------------------------- may be exercised by the Purchaser hereof, in whole or in part and from time to time, by the surrender of this Warrant (with a notice of exercise in the form attached as Exhibit A and the investment representation certificate in the form --------- attached as Exhibit B duly executed) at the principal office of the Company and --------- by the payment to the Company, either (i) by check or wire transfer of an amount equal to the then applicable Warrant Price per share multiplied by the number of Shares then being purchased (the "Aggregate Exercise Price"), (ii) the surrender to the Company of securities of the Company having a market value equal to the Aggregate Exercise Price (or a portion thereof in the case of a partial exercise) of the Shares being purchased upon such exercise, or (iii) this Warrant (or a portion thereof in the case of a partial exercise) without the payment of the Aggregate Exercise Price as provided in clause (i) or (ii) above, together with a statement to the effect that Purchaser elects to receive the number of Shares receivable upon such exercise less the number of Shares having a market value equal to the Aggregate Exercise Price; provided, however, that if the Shares are saleable pursuant to an effective registration statement filed with the Securities and Exchange Commission with respect to such Shares, at the request of the Company, any and all exercises with respect to this Warrant must be paid in the manner set forth in clause (i) above with respect to fifty percent (50%) of such exercise(s) (i.e., 50% of the Aggregate Exercise Price (or portion thereof in the case of a partial exercise) must be paid in cash). Absent written instructions to the contrary, the person or persons in whose name(s) any certificate(s) representing shares of Common Stock shall be issuable upon exercise of this Warrant shall be deemed to have become the Purchaser(s) of record of, and shall be treated for all purposes as the record Purchaser(s) of the shares represented thereby (and such shares shall be deemed to have been issued) immediately prior to the close of business on the date or dates upon which this Warrant is exercised. In the event of any exercise of this Warrant, certificates for the shares of stock so purchased shall be delivered to the Purchaser hereof as soon as possible and in any event within fifteen days of receipt of such notice and, unless this Warrant has been fully exercised or expired, a new Warrant representing the portion of the Shares, if any, with respect to which this Warrant shall not then have been exercised shall also be issued to the Purchaser hereof as soon as possible and in any event within such fifteen-day period. The Company shall register the Shares on a Form S-8, if available, or as set forth in Section 9.3 of the Merger Agreement and Plan of Reorganization dated as of January 9, 2002 by and among the Company, RAE Systems Inc. and RAES Acquisition Corporation. 3. Securities Fully Paid; Reservation of Shares. All shares of Common -------------------------------------------- Stock that may be issued upon the exercise of the rights represented by this Warrant, upon issuance, will be fully paid and nonassessable, and free from all taxes, liens and charges with respect to the issue thereof. During the period within which the rights represented by the Warrant may be exercised, the Company will at all times have authorized and reserved for the purpose of issuance upon exercise of the purchase rights evidenced by this Warrant, a sufficient number of shares of its Common Stock to provide for the exercise of the right represented by this Warrant. 4. Adjustment of Warrant Price and Number of Shares. The number and ------------------------------------------------ kind of securities purchasable upon the exercise of the Warrant and the Warrant Price shall be subject to adjustment from time to time upon the occurrence of certain events, as follows: 4.1 Reclassification or Merger. In case of any reclassification, -------------------------- change or conversion of securities in the class issuable upon exercise of this Warrant (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), or in case of any merger of the Company with or into another corporation (other than a merger with another corporation in which the Company is a continuing corporation and which does not result in any reclassification or change of outstanding securities issuable upon exercise of this Warrant), or in case of any sale of all or substantially all of the assets of the Company, unless this Warrant shall have been exercised or terminated in accordance with its terms, the Purchaser of this Warrant shall have the right to exercise this Warrant and upon such exercise to receive, in lieu of each share of Common Stock theretofore issuable upon exercise of this Warrant, the kind and amount of shares of stock, other securities, money and property receivable upon such reclassification, change or merger by a Purchaser of one share of Common Stock. The provisions of this subparagraph shall similarly apply to successive reclassifications, changes, mergers and transfers. 2 4.2 Subdivisions or Combination of Shares. If the Company at any ------------------------------------- time while this Warrant remains outstanding and unexpired shall subdivide or combine its Common Stock, the Warrant Price and the number of Shares issuable upon exercise hereof shall be proportionately adjusted. Such adjustments shall include but not be limited to, adjustments for the 1 for 5.67 reverse stock split contemplated for the Merger Agreement to occur subsequent to the date hereof. 4.3 Stock Dividends. If the Company at any time while this --------------- Warrant is outstanding and unexpired shall pay a dividend payable in shares of Common Stock (except any distribution specifically provided for in the foregoing subparagraphs 4.1 and 4.2), then the Warrant Price shall be adjusted, from and after the date of determination of shareholders entitled to receive such dividend or distribution, to that price determined by multiplying the Warrant Price in effect immediately prior to such date of determination by a fraction (a) the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution, and (b) the denominator of which shall be the total number of shares of Common Stock outstanding immediately after such dividend or distribution and the number of Shares subject to this Warrant shall be proportionately adjusted. 5. Compliance with Securities Laws. ------------------------------- 5.1 Accredited Investor. This Warrant is conditioned upon, and by ------------------- its acceptance hereof Purchaser hereby confirms, that Purchaser is an "accredited investor" as that term is defined under Regulation D under the Securities Act of 1933. 5.2 Legend. Upon issuance, the Shares shall be imprinted with a ------ legend in substantially the following form: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED. together with any legend required under applicable State securities laws. 5.3 Compliance with Securities Laws on Transfer. This Warrant and ------------------------------------------- the Shares issuable upon exercise of this Warrant may be transferred or assigned in whole or in part in compliance with applicable federal and state securities laws by the transferor and the transferee (including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company). 5.4 "Market Stand-Off" Agreement. Purchaser hereby agrees that in ---------------------------- connection with any underwritten public offering by the Company, during the period of duration (not to exceed 90 days) specified by the Company and an underwriter of common stock of the Company following the effective date of the registration statement of the Company filed under the Securities Act with respect to such offering, it shall not, to the extent requested by the Company and such underwriter, directly or indirectly sell, offer to sell, contract to sell (including, without limitation, any short sale), grant any option to purchase, pledge or otherwise transfer or dispose of (other than to donees who 3 agree to be similarly bound) any securities of the Company held by it at any time during such period except common stock included in such registration. 6. Fractional Shares. No fractional shares of Common Stock will be ----------------- issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor upon the basis of the Warrant Price then in effect. 7. Shareholder Rights. No Purchaser of the Warrant, as such, shall be ------------------ entitled to vote or receive dividends or be deemed the Purchaser of Common Stock or any other securities of the Company which may at any time be issuable on the exercise thereof for any purpose, nor shall anything contained herein be construed to confer upon the Purchaser of this Warrant, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to receive notice of meetings, or to receive dividends or subscription rights or otherwise until this Warrant shall have been exercised and the Shares purchasable upon the exercise hereof shall have become deliverable, as provided herein. 8. Modification and Waiver. This Warrant and any provision hereof may ----------------------- be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of the same is sought. 9. Notices. Any notice, request or other document required or ------- permitted to be given or delivered to the Purchaser hereof or the Company shall be delivered, or shall be sent by certified or registered mail, postage prepaid, to each such Purchaser at its address as shown on the books of the Company or to the Company at the address indicated therefore on the signature page of this Warrant. 10. Lost Warrants or Stock Certificates. Upon receipt of evidence ----------------------------------- reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of this Warrant or any stock certificate and, in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or in the case of any such mutilation upon surrender and cancellation of such Warrant or stock certificate, the Company will make and deliver a new Warrant or stock certificate, or like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant or stock certificate. 11. Governing Law. This Warrant shall be construed and enforced in ------------- accordance with, and the rights of the parties shall be governed by, the laws of the State of California. 12 Entire Agreement; Successors and Assigns. This Agreement and the documents and instruments attached hereto constitute the entire agreement between Holder and the Company relative to the subject matter hereof. Any previous agreements between the parties are superseded by this Agreement. Subject to any exceptions specifically set forth in this Agreement, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective executors, administrators, heirs, successors and assigns of the parties. 4 IN WITNESS WHEREOF, this Warrant has been executed as of the Date of Issuance. "COMPANY" NETTAXI.COM By: Address: "PURCHASER" Michael Gardner By: Address: The Trump Building at 40 Wall Street New York, New York 10005 5 EX-4.9 6 doc5.txt EXHIBIT 4.9 WARRANT AGREEMENT TO PURCHASE COMMON STOCK OF NETTAXI.COM THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED BY INVESTOR FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933. This Warrant Agreement (the "Agreement") is entered into as of January 9, 2002 (the "Effective Date"), by and between Nettaxi.com (the "Company") and Mr. Dean Rositano ("Holder"). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Issuance of Warrants. The Company subject to the terms and conditions -------------------- hereinafter set forth, hereby issues warrants (the "Warrants") to purchase One Million (1,000,000) shares of the Company's Common Stock (the "Warrant Shares"). The exercise price (the "Exercise Price") of the Warrant Shares shall be twenty cents ($0.20) per share, subject to adjustment in accordance with Paragraph 5 of this Agreement. 2. Term. The Warrants may be exercised at any time after the Effective Date ---- of the Merger, as defined in the Merger Agreement between the Company, RAE Systems Inc. and RAES Acquisition Corporation (the "Merger Agreement") and before the expiration of ten (10) years (the "Expiration Date"). If the Merger does not close, this Warrant shall be null and void. 3. Exercise. -------- (a) Holder shall exercise the Warrants granted hereunder, in whole or in part, by delivering to the Company at the office of the Company or at such other address as the Company may designate by notice in writing to the Holder, the notice of Exercise attached hereto as Exhibit A and incorporated herein by --------- reference and a check or wire transfer in lawful money of the United States for the Exercise Price. (b) Upon delivery of the items set forth in (a) above, Holder shall be entitled to receive a certificate or certificates representing the Warrant Shares. Such Warrant Shares shall be validly issued, fully paid and non-assessable. (c) Warrants shall be deemed to have been exercised immediately prior to the close of business on the day of such delivery, and Holder shall be deemed the holder of record of the Warrant Shares issuable upon such exercise at such time. The Warrants may be exercised in whole or in part and from time to time as the holder may determine. (d) Upon any partial exercise, at the request of the Company, this Agreement shall be surrendered and a new Warrant Agreement evidencing the right to purchase the number of Warrant Shares not purchased upon such exercise shall be issued to Holder. (e) Net Issue Exercise. (i) In lieu of exercising this Warrant in the manner provided above in Section 3(a), Holder may elect to receive Warrant Shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with notice of such election in which event the Company shall issue to Holder a number of shares of Warrant Shares computed using the following formula: X = Y (A - B) --------- A Where X is the number of Warrant Shares to be issued to Holder. Y is The number of Warrant Shares purchasable under this Warrant (at the date of such calculation). A is the fair market value of one Share (at the date of such calculation). B is the Exercise Price (as adjusted to the date of such calculation). (ii) For purposes of this Section 3(e), the fair market value of Warrant Shares on the date of calculation shall mean with respect to each share of the Warrant Shares: (A) if shares of Common Stock are traded on a national securities exchange (an "EXCHANGE"), the closing price of a share of the Common Stock of the Company as reported in The Wall Street Journal, or (B) if shares of Common Stock are not traded on an Exchange but trade in the Over-the-Counter Bulletin Board, the closing price of a share of the Common Stock of the Company as reported by Bloomberg Financial markets or an equivalent reliable reporting service, or (C) if (A) and (B) are not applicable, the fair market value of a Share shall be at the highest price per share which the Company could obtain on the date of calculation from a willing buyer for Warrant Shares sold by the Company, fom authorized but unissued Warrant Shares, as determined in good faith by the Board of Directors, unless the Company is at such time involved in any consolidation or merger of the Company with or into another entity, the sale or transfer of all or substantially all of the assets of the Company or any compulsory share exchange pursuant to which the Common Stock is converted into other securities, cash or property, in which case the fair market value of Warrant Shares shall be deemed to be the value received by the holders of such stock pursuant to such acquisition. 2 (D) Notwithstanding anything to the contrary contained herein, fifty percent (50%) of any and all exercises of the Warrants shall be paid in cash in accordance with Section 3(a) and not net exercised under this Section 3(e). 4. Registration Rights. The shares underlying the Warrants shall be ------------------- registered by the Company on Form S-8 or, if Form S-8 is not applicable, on such other Form as shall be appropriate. The Company shall use its commercially reasonable efforts to cause the registration statement to remain effective until the earlier of: (i) shares underlying the Warrants have been sold; or (ii) the date on which the shares underlying the Warrants may be sold to the public without registration or restriction (including, without limitation, restrictions as to volume). 5. Representations and Warranties of Holder. The Holder hereby represents ------------------------------------------- and warrants to the Company as follows: (a) Investment Intent. Holder is purchasing the Warrant Shares solely for its own account for investment. Holder has no present intention to resell or distribute the Warrants or the Warrant Shares or any portion thereof, except in connection with a distribution to its partners. (b) Economic Risk. Holder realizes that the purchase of the Warrants and the Warrant Shares will be a highly speculative investment and involves a high degree of risk. 6. Adjustments. The Warrants granted hereunder and the Exercise Price ----------- thereof shall be subject to adjustment from time to time upon the happening of certain events as set forth below. (a) Stock Splits and Dividends. If outstanding shares of Nettaxi Common Stock shall be subdivided into a greater number of shares or a dividend in Common Stock shall be paid in respect of Common Stock, the Exercise Price in effect immediately prior to such subdivision or at the record date of such dividend shall simultaneously with the effectiveness of such subdivision or immediately after the record date of such dividend be proportionately reduced. If outstanding shares of Common Stock shall be combined into a smaller number of shares, the Exercise Price in effect immediately prior to such combination shall, simultaneously with the effectiveness of such combination, be proportionately increased. When any adjustment is required to be made in the Exercise Price, the number of Shares purchasable upon the exercise of the Warrants shall be changed to the number determined by dividing (i) an amount equal to the number of Shares issuable upon the exercise of the Warrants immediately prior to such adjustment, multiplied by the Exercise Price in effect immediately prior to such adjustment, by (ii) the Exercise Price in effect immediately after such adjustment. The number of Shares purchasable upon the exercise of the Warrants and the Exercise Price of the Warrants shall be appropriately adjusted for the reverse stock split as contemplated by the Merger Agreement. (b) Reclassification or Merger. In case of any reclassification, change or conversion of securities in the class issuable upon exercise of this Warrant (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), or in case of any merger of the Company with or into another corporation (other than a merger with another corporation in which the Company is a continuing corporation and which does not result in any reclassification or change of outstanding securities issuable upon exercise of this Warrant), or in case of any sale of all or substantially all of the assets of the Company, unless this Warrant shall have been exercised or terminated in accordance with its terms, 3 the Holder of this Warrant shall have the right to exercise this Warrant and upon such exercise to receive, in lieu of each share of Common Stock theretofore issuable upon exercise of this Warrant, the kind and amount of shares of stock, other securities, money and property receivable upon such reclassification, change or merger by a holder of one share of Common Stock. The provisions of this subparagraph shall similarly apply to successive reclassifications, changes, mergers and transfers. (c) Adjustment Certificate. When any adjustment is required to be made in the Shares or the Exercise Price pursuant to this Section, Nettaxi shall promptly mail to Holder a certificate setting forth (i) a brief statement of the facts requiring such adjustment, (ii) the Exercise Price after such adjustment and (iii) the kind and amount of stock or other securities or property into which the Warrants shall be exercisable after such adjustment. 7. Reservation of Shares. The Company shall at all times keep reserved a --------------------- sufficient number of authorized shares of Common Stock, and shall make appropriate provision of their issuance, to provide for the exercise of the Warrants in full. 8. Transferability. The Warrants issued hereunder and any and all Shares --------------- issued upon exercise of the Warrants shall be transferable on the books of the Company by the holder hereof in person or by duly authorized attorney subject to any restrictions imposed by applicable federal or state securities laws. It shall be a further condition to any transfer of the Warrants that the transferor (if any portion of the Warrants are retained) and the transferee shall receive and accept new Warrants, of like tenor and date, executed by the Company for the portion so transferred and for any portion retained, and shall surrender this Agreement executed. 9. Voting. Nothing contained in this Agreement shall be construed as ------ conferring upon Holder the right to vote or to receive dividends or to consent or receive notice as a shareholder in respect to any meeting of shareholders for the election of directors of or for any other purpose not specified herein. 10. Miscellaneous. ------------- (a) Amendment. This Agreement may be amended by written agreement between the Company and Holder. (b) Notice. Any notice, demand or request required or permitted to be given under this Agreement will be in writing and will be deemed sufficient when delivered personally or sent by telegram or forty-eight (48) hours after being deposited in the U.S. mail, as certified or registered mail, or with a commercial courier service, with postage prepaid, and addressed, if to the Company, at its principal place of business, attention the President, and if to Holder, at Holder's address as shown on the signature page hereto. (c) Further Assurances. Both parties agree to execute any additional documents necessary to carry out the purposes of this Agreement. 4 (d) Severability. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, unenforceable or void, such provision will be enforced to the greatest extent possible and all other provisions of this Agreement will continue in full force and effect. (e) Governing Law. This Agreement will be interpreted and enforced in accordance with California Law as applied to agreements made and performed in California. (f) Survival. The representations and warranties, of the Company set forth in this Agreement shall survive the closing and consummation of the transactions contemplated hereby for a period of ten (10) years from the date hereof. (g) Entire Agreement; Successors and Assigns. This Agreement and the documents and instruments attached hereto constitute the entire agreement between Holder and the Company relative to the subject matter hereof. Any previous agreements between the parties are superseded by this Agreement. Subject to any exceptions specifically set forth in this Agreement, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective executors, administrators, heirs, successors and assigns of the parties. (h) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (i) Headings. The headings of the Paragraphs of this Agreement are for convenience and shall not by themselves determine the interpretation of this Agreement. (j) Attorney Fees. If any action is brought to interpret or enforce the terms of this Agreement, the prevailing party in such action shall be entitled to recover its attorneys fees and costs incurred in connection with such action. 5 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed and delivered by their duly authorized officers. THE COMPANY: NETTAXI.COM By: /s/ Robert A. Rositano, Jr. ---------------------------- Chief Executive Officer HOLDER: /s/ Dean Rositano ------------------- Dean Rositano Address: ____________ ______________________ 6 EX-4.10 7 doc6.txt EXHIBIT 4.10 WARRANT AGREEMENT TO PURCHASE COMMON STOCK OF NETTAXI.COM THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED BY INVESTOR FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES OR AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933. This Warrant Agreement (the "Agreement") is entered into as of January 9, 2002 (the "Effective Date"), by and between Nettaxi.com (the "Company") and Mr. Robert A. Rositano, Jr. ("Holder"). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Issuance of Warrants. The Company subject to the terms and conditions -------------------- hereinafter set forth, hereby issues warrants (the "Warrants") to purchase One Million (1,000,000) shares of the Company's Common Stock (the "Warrant Shares"). The exercise price (the "Exercise Price") of the Warrant Shares shall be twenty cents ($0.20) per share subject to adjustment in accordance with Paragraph 5 of this Agreement. 2. Term. The Warrants may be exercised at any time after the Effective Date ---- of the Merger, as defined in the Merger Agreement between the Company, RAE Systems Inc. and RAES Acquisition Corporation (the "Merger Agreement") and before the expiration of ten (10) years (the "Expiration Date"). If the Merger does not close, this Warrant shall be null and void. 3. Exercise. -------- (a) Holder shall exercise the Warrants granted hereunder, in whole or in part, by delivering to the Company at the office of the Company or at such other address as the Company may designate by notice in writing to the Holder, the notice of Exercise attached hereto as Exhibit A and incorporated herein by --------- reference and a check or wire transfer in lawful money of the United States for the Exercise Price. (b) Upon delivery of the items set forth in (a) above, Holder shall be entitled to receive a certificate or certificates representing the Warrant Shares. Such Warrant Shares shall be validly issued, fully paid and non-assessable. (c) Warrants shall be deemed to have been exercised immediately prior to the close of business on the day of such delivery, and Holder shall be deemed the holder of record of the Warrant Shares issuable upon such exercise at such time. The Warrants may be exercised in whole or in part and from time to time as the holder may determine. (d) Upon any partial exercise, at the request of the Company, this Agreement shall be surrendered and a new Warrant Agreement evidencing the right to purchase the number of Warrant Shares not purchased upon such exercise shall be issued to Holder. (e) Net Issue Exercise. (i) In lieu of exercising this Warrant in the manner provided above in Section 3(a), Holder may elect to receive Warrant Shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with notice of such election in which event the Company shall issue to Holder a number of shares of Warrant Shares computed using the following formula: X = Y (A - B) --------- A Where X is the number of Warrant Shares to be issued to Holder. Y is The number of Warrant Shares purchasable under this Warrant (at the date of such calculation). A is the fair market value of one Share (at the date of such calculation). B is the Exercise Price (as adjusted to the date of such calculation). (ii) For purposes of this Section 3(e), the fair market value of Warrant Shares on the date of calculation shall mean with respect to each share of the Warrant Shares: (A) if shares of Common Stock are traded on a national securities exchange (an "EXCHANGE"), the closing price of a share of the Common Stock of the Company as reported in The Wall Street Journal, or (B) if shares of Common Stock are not traded on an Exchange but trade in the Over-the-Counter Bulletin Board, the closing price of a share of the Common Stock of the Company as reported by Bloomberg Financial markets or an equivalent reliable reporting service, or (C) if (A) and (B) are not applicable, the fair market value of a Share shall be at the highest price per share which the Company could obtain on the date of calculation from a willing buyer for Warrant Shares sold by the Company, fom authorized but unissued Warrant Shares, as determined in good faith by the Board of Directors, unless the Company is at such time involved in any consolidation or merger of the Company with or into another entity, the sale or transfer of all or substantially all of the assets of the Company or any compulsory share exchange pursuant to which the Common Stock is converted into other securities, cash or property, in which case the fair market value of Warrant Shares shall be deemed to be the value received by the holders of such stock pursuant to such acquisition. (D) Notwithstanding anything to the contrary contained herein, fifty percent (50%) of any and all exercises of the Warrants shall be 2 paid in cash in accordance with Section 3(a) and not net exercised under this Section 3(e). 4. Registration Rights. The shares underlying the Warrants shall be ------------------- registered by the Company on Form S-8 or, if Form S-8 is not applicable, on such other Form as shall be appropriate. The Company shall use its commercially reasonable efforts to cause the registration statement to remain effective until the earlier of: (i) shares underlying the Warrants have been sold; or (ii) the date on which the shares underlying the Warrants may be sold to the public without registration or restriction (including, without limitation, restrictions as to volume). 5. Representations and Warranties of Holder. The Holder hereby represents ------------------------------------------- and warrants to the Company as follows: (a) Investment Intent. Holder is purchasing the Warrant Shares solely for its own account for investment. Holder has no present intention to resell or distribute the Warrants or the Warrant Shares or any portion thereof, except in connection with a distribution to its partners. (b) Economic Risk. Holder realizes that the purchase of the Warrants and the Warrant Shares will be a highly speculative investment and involves a high degree of risk. 6. Adjustments. The Warrants granted hereunder and the Exercise Price ----------- thereof shall be subject to adjustment from time to time upon the happening of certain events as set forth below. (a) Stock Splits and Dividends. If outstanding shares of Nettaxi Common Stock shall be subdivided into a greater number of shares or a dividend in Common Stock shall be paid in respect of Common Stock, the Exercise Price in effect immediately prior to such subdivision or at the record date of such dividend shall simultaneously with the effectiveness of such subdivision or immediately after the record date of such dividend be proportionately reduced. If outstanding shares of Common Stock shall be combined into a smaller number of shares, the Exercise Price in effect immediately prior to such combination shall, simultaneously with the effectiveness of such combination, be proportionately increased. When any adjustment is required to be made in the Exercise Price, the number of Shares purchasable upon the exercise of the Warrants shall be changed to the number determined by dividing (i) an amount equal to the number of Shares issuable upon the exercise of the Warrants immediately prior to such adjustment, multiplied by the Exercise Price in effect immediately prior to such adjustment, by (ii) the Exercise Price in effect immediately after such adjustment. The number of Shares purchasable upon the exercise of the Warrants and the Exercise Price of the Warrants shall be appropriately adjusted for the reverse stock split as contemplated by the Merger Agreement. (b) Reclassification or Merger. In case of any reclassification, change or conversion of securities in the class issuable upon exercise of this Warrant (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), or in case of any merger of the Company with or into another corporation (other than a merger with another corporation in which the Company is a continuing corporation and which does not result in any reclassification or change of outstanding securities issuable upon exercise of this Warrant), or in case of any sale of all or substantially all of the assets of the Company, unless this Warrant shall have been exercised or terminated in accordance with its terms, the Holder of this Warrant shall have the right to exercise this Warrant and upon such exercise to receive, in lieu of each share of Common Stock theretofore issuable upon exercise of this Warrant, the kind and amount of shares of stock, 3 other securities, money and property receivable upon such reclassification, change or merger by a holder of one share of Common Stock. The provisions of this subparagraph shall similarly apply to successive reclassifications, changes, mergers and transfers. (c) Adjustment Certificate. When any adjustment is required to be made in the Shares or the Exercise Price pursuant to this Section, Nettaxi shall promptly mail to Holder a certificate setting forth (i) a brief statement of the facts requiring such adjustment, (ii) the Exercise Price after such adjustment and (iii) the kind and amount of stock or other securities or property into which the Warrants shall be exercisable after such adjustment. 7. Reservation of Shares. The Company shall at all times keep reserved a --------------------- sufficient number of authorized shares of Common Stock, and shall make appropriate provision of their issuance, to provide for the exercise of the Warrants in full. 8. Transferability. The Warrants issued hereunder and any and all Shares --------------- issued upon exercise of the Warrants shall be transferable on the books of the Company by the holder hereof in person or by duly authorized attorney subject to any restrictions imposed by applicable federal or state securities laws. It shall be a further condition to any transfer of the Warrants that the transferor (if any portion of the Warrants are retained) and the transferee shall receive and accept new Warrants, of like tenor and date, executed by the Company for the portion so transferred and for any portion retained, and shall surrender this Agreement executed. 9. Voting. Nothing contained in this Agreement shall be construed as ------ conferring upon Holder the right to vote or to receive dividends or to consent or receive notice as a shareholder in respect to any meeting of shareholders for the election of directors of or for any other purpose not specified herein. 10. Miscellaneous. ------------- (a) Amendment. This Agreement may be amended by written agreement between the Company and Holder. (b) Notice. Any notice, demand or request required or permitted to be given under this Agreement will be in writing and will be deemed sufficient when delivered personally or sent by telegram or forty-eight (48) hours after being deposited in the U.S. mail, as certified or registered mail, or with a commercial courier service, with postage prepaid, and addressed, if to the Company, at its principal place of business, attention the President, and if to Holder, at Holder's address as shown on the signature page hereto. (c) Further Assurances. Both parties agree to execute any additional documents necessary to carry out the purposes of this Agreement. (d) Severability. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, unenforceable or void, such provision will be enforced to the greatest extent possible and all other provisions of this Agreement will continue in full force and effect. 4 (e) Governing Law. This Agreement will be interpreted and enforced in accordance with California Law as applied to agreements made and performed in California. (f) Survival. The representations and warranties, of the Company set forth in this Agreement shall survive the closing and consummation of the transactions contemplated hereby for a period of ten (10) years from the date hereof. (g) Entire Agreement; Successors and Assigns. This Agreement and the documents and instruments attached hereto constitute the entire agreement between Holder and the Company relative to the subject matter hereof. Any previous agreements between the parties are superseded by this Agreement. Subject to any exceptions specifically set forth in this Agreement, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective executors, administrators, heirs, successors and assigns of the parties. (h) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (i) Headings. The headings of the Paragraphs of this Agreement are for convenience and shall not by themselves determine the interpretation of this Agreement. (j) Attorney Fees. If any action is brought to interpret or enforce the terms of this Agreement, the prevailing party in such action shall be entitled to recover its attorneys fees and costs incurred in connection with such action. 5 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed and delivered by their duly authorized officers. THE COMPANY: NETTAXI.COM By: /s/ Dean Rositano ------------------- President HOLDER: /s/ Robert A. Rositano ------------------------- Robert A. Rositano Address:________________ ________________________ 6 EX-5.1 8 doc7.txt EXHIBIT 5.1 [LETTERHEAD] April 8, 2002 Nettaxi.com 33 First Street Campbell, California 95008 Re: Nettaxi.com Registration Statement on Form S-8 13,772,500 shares of Common Stock issuable upon exercise of warrants -------------------------------------------------------------------- Gentlepersons: We are counsel to Nettaxi.com, a Nevada corporation (the "Company"). We have assisted the Company in its preparation of a Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), registering 13,772,500 shares of common stock, $.001 par value, of the Company (the "Common Stock") issuable upon exercise of outstanding warrants. In rendering this opinion, we have considered such questions of law and examined such statutes and regulations, corporate records, certificates and other documents and have made such other examinations, searches and investigations as we have considered necessary. In such examinations we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified or as photocopies or telecopies. We have not made an independent examination of the laws of any jurisdiction other than California and the federal laws of the United States, and we do not express or imply any opinions in respect to the laws of any other jurisdiction. The opinions expressed herein are based on legislation and regulations in effect on the date hereof. Based on and subject to the foregoing, we are of the opinion that the Common Stock, when issued pursuant to the exercise of warrants outstanding and when the purchase price therefor has been paid, will be duly and validly issued, fully paid and nonassessable shares of Common Stock. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement. This consent is not to be construed as an admission that we are a person whose consent is required to be filed with the Registration Statement under the provisions of the Securities Act. Very truly yours, /s/ SILICON VALLEY LAW GROUP ---------------------------- SILICON VALLEY LAW GROUP EX-23.2 9 doc8.txt Exhibit 23.2 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS Nettaxi.com Campbell, California We hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement on Form S-8 of our report dated January 11, 2002, relating to the consolidated financial statements of Nettaxi.com appearing in the Company's Annual Report on Form 10-K for the year ended December 31, 2001. /s/ BDO Seidman, LLP BDO Seidman, LLP San Jose, California April 8, 2002 -----END PRIVACY-ENHANCED MESSAGE-----