STOCK POSITION MANAGEMENT AGREEMENT
EXHIBIT 4.2
THIS
STOCK POSITION MANAGEMENT AGREEMENT, dated as of the ___ day of October, 2008 (this
“Agreement”), is made by and between The Ensign Group, Inc., a Delaware
corporation (the “Ensign”) and Xxxxx X. Xxxxxxxxxxx, an individual (the
“Shareholder”) with reference to the following facts and intentions:
WITNESSETH:
A. Concurrently with the execution of this Agreement, Shareholder has received approximately
1,854,500 shares of Ensign Common Stock (the “Shares”) from The Xxxxxxxxxxx Family Trust
dated 10/24/05 (the “Trust”), making Shareholder the owner of approximately 9.2% of the outstanding
shares of Ensign’s common stock as of the date hereof.
B. Shareholder and Ensign mutually desire to set forth certain agreements with respect to the
disposition of the Shares into the marketplace.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
TERMS AND CONDITIONS:
1. Term. The term of this Agreement shall be for two (2) years from the date of this
Agreement, at the conclusion of which it shall automatically, and without further notice from
either party, expire.
2. Volume Control.
a. Sales of Small Lots. Ensign agrees that Shareholder may sell, at her sole
discretion, lots of Shares not exceeding Two Thousand Five Hundred (2,500) Shares per trading day
at any time and by any lawful method.
b. Sales of Large Lots. Ensign and Shareholder acknowledge that uncontrolled sales of
large lots of Ensign shares are not in the best interests of Shareholder or Ensign. In the event
Shareholder intends to sell more than Two Thousand Five Hundred (2,500) Shares (a “Large Lot”) in a
single transaction or order, Shareholder and Ensign accordingly agree that Shareholder will not (i)
sell during any single trading day more than twenty percent (20%) of the 50-day average daily
trading volume for Ensign shares as published by XXXXXX.xxx (the “Average Daily Trading Volume”),
or (ii) sell during any thirty (30) day period more than a combined total of one hundred fifty
percent (150%) of the Average Daily Trading Volume. In all events, when selling a Large Lot
Shareholder agrees to sell only through the block trading desk of a brokerage firm which makes a
market in Ensign shares or through a brokerage firm designated by Ensign.
2. Secondary Offering; Co-Sale Right. As additional consideration for Shareholder’s
covenants in Section 1 and elsewhere in this Agreement, in the event that any of Ensign’s
executives individually holding five percent (5%) or more of Ensign’s outstanding shares (either
individually or through entities controlled by any of them) are hereafter scheduled to participate
as selling stockholders in a secondary public offering pursuant to a registration statement filed
by Ensign (a “Secondary Offering”), Ensign will notify Shareholder of such
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Secondary Offering prior to its completion and shall offer to allow Shareholder to
participate, on a pro-rata basis relative to the other Secondary Offering participants, in such
Secondary Offering.
3. Miscellaneous.
A. Parties in Interest. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, successors and assigns.
B. Severability. In the event any covenant, term, condition or provision of this
Agreement shall be deemed by a court of competent jurisdiction to be illegal, void or against
public policy, such provision shall be severed from this Agreement and the remaining terms,
conditions and provisions hereof shall remain in full force and effect to the extent permitted by
law.
C. Construction. This Agreement has been negotiated by the parties and both are
responsible for its drafting. The parties mutually agree that this Agreement shall be construed
neither for nor against either party, but in accordance with the plain language and intent hereof.
D. No Unintended Beneficiaries. This Agreement is solely between the parties hereto,
and shall not create any right or benefit in any third party, including without limitation any
creditor, agent, contractor, employee or affiliate of Ensign or Shareholder.
E. Integration and Amendment. This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof, and supersedes any and all prior oral or written
agreements between the parties with respect to the subject matter hereof. No modification or
amendment hereto shall be valid or binding upon either party unless such amendment or modification
is in writing and duly executed by the parties.
F. Counterparts. This Agreement may be executed by the parties hereto in separate
counterparts or by facsimile, each of which when so executed and delivered shall be an original,
and all of which together shall constitute one and the same instrument.
G. Governing Law. This Agreement and the rights and obligations of the parties
hereunder shall be governed by, and construed in accordance with, the laws of the State of Delaware
as applied to contracts made and performed entirely in such state.
In Witness Whereof, the parties hereto have duly executed and delivered this
Agreement as of the date first written above.
| Ensign: | Shareholder: | ||||
| The Ensign Group, Inc., a Delaware corporation |
|||||
| By: | |||||
| Xxxxxxx X. Xxxxxxx | Xxxxx X. Xxxxxxxxxxx, Individually | ||||
| Vice President & General Counsel | |||||
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