STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of November 6, 2003, between X.
Xxxxxx XxXxxxxx, Novestra A. B., Xxxxxxx Management, Xxxx Xxxxx and Xxxxx X.
Xxxxx, III (each, a "Buyer" and collectively, the "Buyers"), and Xxxxxx X. Xxxxx
(the "Seller").
W I T N E S S E T H:
WHEREAS, the Seller owns 1,856,554 shares of common stock, par value
$0.05 per share (the "Shares") of Covista Communications, Inc., a New Jersey
corporation ("Covista"); and
WHEREAS, the Seller wishes to sell the Shares to the Buyers and the
Buyers wish to purchase the Shares from the Seller, on the terms and conditions
and for the consideration described in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises, covenants,
representations and warranties made in this Agreement and of the mutual benefits
to be derived from this Agreement, the parties agree as follows:
ARTICLE I
SALE AND PURCHASE OF THE SHARES
1.1. Sale and Purchase of the Shares. Subject to the terms and
conditions of this Agreement, the Seller agrees to sell to each Buyer, and each
Buyer agrees to purchase from Seller, the respective number of Shares set forth
next to such Buyer's name on Schedule A attached hereto, at a purchase price of
$2.50 per share. For each Buyer, the aggregate purchase price (each, a "Purchase
Price") in respect of the Shares to be purchased by it is also set forth on
Schedule A.
1.2. Payment and Delivery.
(a) Each Buyer shall pay the Purchase Price applicable to it by 2:00
p.m., New York time, on November 12, 2003 (the "Payment Date") by wire transfer
of immediately available funds to the following account:
Mellon Bank
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
ABA Routing #0000-0000-0
For Credit to Xxxxxxx Xxxxx Account No. 101-1730
Further Credit to Xxxxxx X. Xxxxx Account 84A-41532
(b) Each Buyer shall provide to the Seller or its designee, by no later
than the second Business Day following the Purchase Date, written account
information ("Account Information") for the securities account to which the
Shares purchased by such Buyer are to be transferred (including the brokerage
name, DTC number, individual account number, and such other information
regarding such account as Seller may reasonably request for the purpose of
effecting the transfer of the Shares purchased by such Buyer). For the purpose
of this Agreement, a "Business Day" shall mean a day other than a Saturday,
Sunday or other day on which commercial banks in New York City are authorized or
required by law to close.
(c) Subject to receipt from a Buyer of the Purchase Price in respect of
the Shares purchased by such Buyer and Account Information for the securities
account to which the Shares purchased by such Buyer are to be transferred, as
set forth in Sections 1.2(a) and 1.2(b) above, Seller will cause the Shares
purchased by such Buyer to be transferred to the account of such Buyer
designated in the Account Information provided by such Buyer by no later than
the third Business Day following the Purchase Date.
ARTICLE II
REPRESENTATIONS, WARRANTIES, COVENANTS AND CERTAIN
ACKNOWLEDGEMENTS OF THE SELLER
2. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to each Buyer as follows:
2.1. Authority. The Seller has the capacity to execute and deliver this
Agreement, to perform the Seller's obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Seller, and is a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms.
2.2. Title to Shares, etc. The Seller owns beneficially and of record
the Shares and has title to the Shares free and clear of any mortgage, pledge,
hypothecation, security interest, encumbrance, title retention agreement, lien,
charge or other similar restriction.
2.3. Acknowledgement of Disclosure; Waiver of Certain Rights. The
Seller hereby acknowledges that the Buyer Representative has disclosed that (i)
a settlement has been reached with an insurance company that will result in a
payment to Covista of approximately $2,750,000 in connection with the business
interruption that resulted from the terrorist events of September 11, 2001, and
(ii) Covista has purchased advertisement space on the front page of the "MSN
Homepage" internet website for a one-year period; and the Seller hereby waives
any and all claims it may have or may hereafter acquire against any Buyer
relating to any failure to disclose the foregoing information to the Seller in
connection with the sale and purchase of the Shares. The "Buyer Representative"
is Xxxxx X. Xxxxx, III.
ARTICLE III
REPRESENTATIONS, WARRANTIES, COVENANTS AND CERTAIN
ACKNOWLEDGEMENTS OF THE BUYERS
3. Representations and Warranties of the Buyers. Each Buyer hereby
represents and warrants to the Seller as follows:
3.1. Corporate Status and Authority. If such Buyer is a corporation or
other entity, it has the power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. If such Buyer is an individual, such Buyer has
the capacity to execute and deliver this Agreement, to perform such Buyer's
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by such Buyer
and constitutes the valid and binding obligation of such Buyer, enforceable
against such Buyer in accordance with its terms.
3.2. Sophistication. Such Buyer is a sophisticated buyer with respect
to the Shares and has the appropriate knowledge and experience in financial and
business matters to evaluate, negotiate, and implement its purchase of Shares
and is able to bear the economic risk of its purchase of Shares.
3.3. No Reliance. Such Buyer has adequate information with respect to
the business, financial affairs and prospects of Covista and its affiliates
necessary or advisable to evaluate the merits and risks of its purchase of
Shares and such Buyer has been afforded ample opportunity to discuss such
information with such financial, investment, legal and tax experts as such Buyer
deems appropriate in connection with its purchase of Shares. Based on such
information as it has deemed appropriate, such Buyer has made the decision to
purchase Shares from the Seller, and has done so independently and without
reliance upon the Seller (or any other person or entity affiliated or associated
with the Seller) for any investigation or assessment to evaluate Covista, the
Shares, the price at which the Seller is selling the Shares or any other matter.
3.4. Independence. Except as expressly set forth herein, neither the
Seller nor any other person or entity affiliated or associated with the Seller
has made any representations or warranties, express or implied, of any kind
regarding or relating to Covista, any of Covista's affiliates or the Shares, or
the accuracy or completeness of any information or documents regarding Covista,
any of Covista's affiliates or the Shares. Neither the Seller nor any other
person or entity affiliated or associated with the Seller has any obligation to
the Buyers, express or implied, including, without limitation, fiduciary
obligations.
3.5. General; Waiver of Certain Rights. Such Buyer is fully aware that
the Seller is relying upon the truth and accuracy of the foregoing
representations and warranties in selling Shares to such Buyer. Such Buyer
hereby waives any and all claims
it may have or may hereafter acquire against Seller relating to any failure by
Seller to disclose non-public information in connection with the sale and
purchase of the Shares.
ARTICLE IV
MISCELLANEOUS PROVISIONS
4.1. Amendments and Waivers. This Agreement may be amended and the
observance of any provision of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of the Seller and each Buyer whose interests are materially
affected by such amendment or waiver.
4.2. Survival of Representation and Warranties: All representations,
warranties and covenants contained herein or made in writing by or on behalf of
each Buyer and the Seller in connection with the transactions contemplated by
this Agreement will survive the execution and delivery of this Agreement and any
investigation at any time made by or on behalf of any Buyer or the Seller.
4.3. Successors and Assigns. This Agreement is binding upon and inures
to the benefit of and is enforceable by the respective successors and permitted
assigns of the parties.
4.4. Governing Law. This Agreement and the rights and obligations of
the parties hereto shall be interpreted and enforced in accordance with and
governed by the laws of the State of New York applicable to agreements made and
to be performed wholly within that jurisdiction, without regard to principles of
conflicts of laws.
4.5. Section Headings. The article and section headings in this
Agreement are inserted for convenience only and may not to be deemed to alter or
affect the meaning or interpretation of any provision of this Agreement.
4.6. Entire Agreement. This Agreement contains the entire agreement of
the parties with respect to the subject matter of this Agreement, and there are
no representations, covenants or other agreements except as stated or referred
to herein.
4.7. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
XXXXXX X. XXXXX
/s/ Xxxxxx X Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
X. XXXXXX XXXXXXXX
/s/ X. Xxxxxx XxXxxxxx
-----------------------------------
Name: X. Xxxxxx XxXxxxxx
NOVESTRA A. B.
By:
--------------------------------
Name:
Title:
POINTER MANAGEMENT COMPANY
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: V.P. & CFO
XXXX XXXXX
/s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
XXXXX X. XXXXX, III
/s/ Xxxxx X. Xxxxx, III
-----------------------------------
Name: Xxxxx X. Xxxxx, III
Schedule A
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Purchase Amounts and Prices
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Purchaser Number of Shares Purchase Price
--------- ---------------- --------------
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X. Xxxxxx XxXxxxxx 700,000 $1,750,000
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Novestra A. B. 400,000 $1,000,000
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Xxxxxxx Management 100,000 $250,000
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Xxxx Xxxxx 100,000 $250,000
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Xxxxx X. Xxxxx, III 556,554 $1,391,385
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