AGREEMENT
Exhibit
10.21
AGREEMENT
AGREEMENT, dated as of January 18, 1999, among TANDEM HEALTH CARE, INC., a Pennsylvania
corporation (the “Company”), XXXXXXX CAPITAL II L.P., a Delaware limited partnership (“Xxxxxxx”),
STRATEGIC ENTREPRENEUR FUND II, L.P., a Delaware limited partnership (collectively with Xxxxxxx,
the “Purchasers”), and Xxxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx (collectively, the “Founders” and
collectively with the Purchasers the “Stockholders”).
WHEREAS, the Stockholders are parties to a Stockholders Agreement dated March 25, 1998 (the
“Stockholders Agreement”); and
WHEREAS, the Purchasers are parties to a Securities Purchase Agreement dated as of March 25,
1998 pursuant to which the Purchasers have purchased and have agreed to purchase Preferred Stock
(as defined in the Stockholders Agreement); and
WHEREAS, the Company has entered into an agreement with Xxxxx/Xxxxxxx Med-Com, Inc. (the “SPMC
Agreement”) that provides, among other things, for the issuance of warrants for up to 189,516.6
shares of common stock of the Company to Xxxxx/Xxxxxxx Med-Com, Inc. on the terms and conditions
set forth in the SPMC Agreement (the “Warrants”).
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. Definitions. Capitalization terms used herein and not otherwise defined shall have
the meanings set forth in the Stockholders Agreement.
2. Issuances of Warrants to Xxxxx/Xxxxxxx. The Stockholders confirm and agree that
issuance of the Warrants pursuant to the SPMC Agreement shall be excluded from the anti-dilution
protections provided in Section 4 of the Company’s Articles of Incorporation (the “Articles”) and
shall be treated as if such issuance were governed by Section 4F of the Articles.
3. Waiver of Participation Rights. The Stockholders hereby waive the Participation
Rights under Section 3 of the Stockholders Agreement with respect to (and only with respect to) the
Warrants.
4. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by or on behalf of any of the
parties hereto shall bind and inure to the benefit of the respective successors, heirs and assigns
of the parties hereto whether so express or not.
(b) This Agreement shall be governed by and construed in accordance with the internal laws of
the Commonwealth of Pennsylvania, without giving effect to its principles of conflicts of law.
(c) This Agreement constitutes the entire agreement of the parties with respect to the subject
matter hereof and may not be modified or amended except in a writing executed by the parties.
(d) Except as modified herein, the terms of the Stockholders Agreement continue to be in full
force and effect.
(e) 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the
date first above written.
TANDEM HEALTH CARE, INC. | ||||
By:
|
/s/ Xxxxxxxx X. Xxxxxxx | |||
Chairman and Chief Executive Officer | ||||
XXXXXXX CAPITAL II L.P. | ||||
By:
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Xxxxxxx Brothers, L.L.C. | |||
General Partner | ||||
By:
|
/s/ Xxxxxx Xxxxxxx | |||
Managing Member | ||||
STRATEGIC ENTREPRENEUR FUND II, L.P. | ||||
By:
|
/s/ Xxxxxx Xxxxxxx | |||
General Partner | ||||
/s/ Xxxxxxxx X. Xxxxxxx | ||||
/s/ Xxxxxx X. Xxxxx | ||||
Xxxxxx X. Xxxxx |
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