exv10w4



 





Exhibit 10.4



 










 





	 	 	 
	Optionee:

	 	Option Number:
	 
	 	 
	Address:

	 	Plan: 2007 Omnibus Incentive Plan






 




Notice is hereby given of the following Option Award grant (the “Option”) to purchase shares of the
Common Stock of The Ensign Group, Inc. (the “Corporation”):




	 	 	 
	Grant Date:

	 	Number of Option Shares:
	 
	 	 
	Type of Option:

	 	Exercise Price Per Share:






 





V E S T I N G



Vesting Schedule: ___% annually, with the first block vesting on the first
(1st) anniversary of the Grant Date



Expiration Date: __________________, or upon earlier termination of the Option



Except as otherwise provided in the Option Agreement, the Option may be exercised for vested
Shares by Optionee in accordance with the following schedule:




	 	 	 
	On or after each of	 	Number of Option Shares
	the following dates	 	vested and exercisable
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 





 




By accepting this Option Award, Optionee acknowledges and agrees that the option rights herein are
granted only subject to and in accordance with the terms of (i) the enclosed NON-INCENTIVE STOCK
OPTION AWARD TERMS AND CONDITIONS (together with this Notice of Grant of Stock Options, the “Option
Agreement”), and (ii) THE ENSIGN GROUP, INC. 2007 OMNIBUS INCENTIVE PLAN (the “Plan), both of which
are incorporated herein by this reference. Option Shares purchased pursuant to this Option Award
can only be acquired subject to the terms set forth in the Plan and the Option Agreement, whether
said options are purchased electronically or in person. All capitalized terms in this Notice of
Grant of Stock Options shall have the meaning assigned to them in the Option Agreement or the Plan.



EXECUTED AND DELIVERED as of the Grant Date set forth above.




	 	 	 	 	 
	 	The Ensign Group, Inc.,  

a Delaware corporation 

 	 
	 	By:  	 	 
	 	 	Gregory K. Stapley, Secretary             	 
	 	 	 	 



 









 






	 	 	 	 	 



THE ENSIGN GROUP, INC.

NON-INCENTIVE STOCK OPTION AWARD

TERMS AND CONDITIONS





     These NON-INCENTIVE STOCK OPTION AWARD TERMS AND CONDITIONS are an integral part of the
foregoing Notice of Grant of Stock Options (the “Notice,” and together with these Terms and
Conditions, the “Option Agreement”) made by The Ensign Group, Inc., a Delaware corporation (the
“Company”) to the individual “Optionee” named therein. All capitalized terms used herein but not
defined in the Option Agreement shall have the meanings given to them in The Ensign Group, Inc.
2007 Omnibus Incentive Plan (the “Plan”), the terms and conditions of which are incorporated herein
by this reference.



     1. Grant of Option. The Company hereby grants Optionee, on the date such grant was approved by the Committee
(the “Grant Date”), the option (the “Option”) to purchase all or any part of the number of Option
Shares set forth in the Notice (the “Shares”) of Common Stock of the Company at the exercise price
per share set forth in the Notice, according to the terms and conditions set forth in this Option
Agreement and in the Plan. The Option will not be treated as an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”). The Option is
issued under the Plan and is subject to its terms and conditions. A copy of the Plan will be
furnished upon request of Optionee.



     The Option shall terminate at the close of business on the Expiration Date set forth in the
Notice (the “Expiration Date”) unless sooner terminated or cancelled in accordance with this Option
Agreement or the Plan.



     2. Vesting of Option Rights.



               (a) Except as otherwise provided in this Option Agreement, the Option may be
exercised for vested Shares by Optionee in accordance with the schedule set forth in the Notice.



               (b) During the lifetime of Optionee, the Option shall be exercisable only by
Optionee and shall not be assignable or transferable by Optionee, other than by will or the laws of
descent and distribution; provided however, that Optionee may transfer the Option to any “Family
Member” (as such term is defined in the General Instructions to Form S-8 (or any successor to such
Instructions or such Form) under the Securities Act), provided that the Participant may not receive
any consideration for such transfer, the Family Member may not make any subsequent transfers other
than by will or by the laws of descent and distribution and the Company receives written notice of
such transfer.



     3. Exercise of Option after Death or Termination of Service. The Option shall terminate and may no longer be exercised if Optionee ceases to provide
Service to the Company or its affiliates, except that:



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               (a) If Optionee’s Service shall be terminated for any reason, voluntary or
involuntary, other than for “Cause” (as defined in Section 3(e)) or Optionee’s death or disability
(within the meaning of Section 22(e)(3) of the Code), Optionee may at any time within a period of 3
months after such termination exercise the Option to the extent the Option was vested and
exercisable by Optionee on the date of the termination of Optionee’s Service.



               (b) If Optionee’s Service is terminated for Cause, the Option shall be terminated as
of the date of the act giving rise to such termination.



               (c) If Optionee shall die while the Option is still exercisable according to its
terms or if Optionee’s Service is terminated because Optionee has become disabled (within the
meaning of Section 22(e)(3) of the Code) while providing Service to the Company and Optionee shall
not have fully exercised the Option, such Option may be exercised at any time within 12 months
after Optionee’s death or date of termination of Service for disability by Optionee, personal
representatives or administrators or guardians of Optionee as applicable, or by any person or
persons to whom the Option is transferred by will or the applicable laws of descent and
distribution, to the extent of the full number of Shares Optionee was entitled to purchase under
the Option on (i) the earlier of the date of death or termination of Service or (ii) the date of
termination for such disability, as applicable.



               (d) Notwithstanding the above, in no case may the Option be exercised to any extent
by anyone after the Expiration Date.



               (e) “Cause” shall mean (i) the willful and continued failure by Optionee
substantially to perform his or her duties and obligations (other than any such failure resulting
from his or her incapacity due to physical or mental illness), (ii) Optionee’s conviction or plea
bargain of any felony or gross misdemeanor involving moral turpitude, fraud or misappropriation of
funds, or (iii) the willful engaging by Optionee in misconduct which causes substantial injury to
the Company or its affiliates, its other employees or the employees of its affiliates or its
clients or the clients of its affiliates, whether monetarily or otherwise. For purposes of this
paragraph, no action or failure to act on Optionee’s part shall be considered “willful” unless done
or omitted to be done, by Optionee in bad faith and without reasonable belief that his or her
action or omission was in the best interests of the Company. However, if the term or concept has
been defined in an employment agreement between the Company and Optionee, then Cause shall have the
definition set forth in such employment agreement. The foregoing definition shall not in any way
preclude or restrict the right of the Company (or any Affiliate) to discharge or dismiss Optionee
or other person providing Service to the Company (or any Affiliate) for any other acts or omissions
but such other acts or omissions shall not be deemed, for purposes of this Option Agreement, to
constitute grounds for termination for Cause.



     4. Method of Exercise of Option. Subject to the foregoing, the Option may be exercised in whole or in part from time to time
by serving written notice of exercise on the Company at its principal office or the Company’s
designated agent for such purposes, within the Option period. The notice shall state the number of
Shares as to which the Option is being exercised and shall be accompanied by payment of the
exercise price. Payment of the exercise price shall be made (i) in cash (including bank check,
valid personal check or money order payable to the Company), or (ii) with the approval of the
Company (which may be given in its sole discretion), by delivering to the Company for cancellation
shares of the Company’s Common Stock already owned by Optionee having a Fair Market Value (as
defined in the Plan) equal to the full exercise price of the Shares being acquired. Only that
portion of the Option covering vested Option Shares is exercisable at any time. Subject to Section
402 of the Sarbanes-Oxley Act of 2002, to the extent this Option is exercised for vested Shares,
the Option may be exercised in whole or in part from time to time through a special sale and
remittance procedure pursuant to which Optionee shall concurrently provide irrevocable instructions
(1) to Optionee’s brokerage firm to effect the immediate sale
of the purchased Shares and remit to the Company, out of the sale proceeds available on the
settlement date, sufficient funds to cover the aggregate exercise price payable for the purchased
Shares plus all applicable income and employment taxes required to be withheld by the Company by
reason of such exercise, and (2) to the Company to deliver the certificates for the purchased
Shares directly to such brokerage firm in order to complete the sale.




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     5. Miscellaneous.



               (a) Plan Provisions Control. The Option award memorialized in this Option
Agreement is made solely upon the terms and conditions set forth herein and in the Plan and any
related documents. The Option Agreement and the Plan together constitute the entire agreement
between the parties hereto with regard to the subject matter hereof. In the event that any
provision of the Option Agreement conflicts with or is inconsistent in any respect with the terms
of the Plan, the terms of the Plan shall control. 



               (b) No Rights of Stockholders. Neither Optionee, Optionee’s legal
representative nor a permissible assignee of this Option shall have any of the rights and
privileges of a stockholder of the Company with respect to the Shares, unless and until such Shares
have been issued in the name of Optionee, Optionee’s legal representative or permissible assignee,
as applicable.



               (c) No Right to Employment. The grant of the Option shall not be construed
as giving Optionee the right to be retained in the employ of, or as giving a director of the
Company or an Affiliate (as defined in the Plan) the right to continue as a director of the Company
or an Affiliate with, the Company or an Affiliate, nor will it affect in any way the right of the
Company or an Affiliate to terminate such employment or position at any time, with or without
cause. In addition, the Company or an Affiliate may at any time dismiss Optionee from employment,
or terminate the term of a director of the Company or an Affiliate, free from any liability or any
claim under the Plan or the Option Agreement. Nothing in the Option Agreement shall confer
on any person any legal or equitable right against the Company or any Affiliate, directly or
indirectly, or give rise to any cause of action at law or in equity against the Company or an
Affiliate. The Option granted hereunder shall not form any part of the wages or salary of Optionee
for purposes of severance pay or termination indemnities, irrespective of the reason for
termination of employment. Under no circumstances shall any person ceasing to be an employee of the
Company or any Affiliate be entitled to any compensation for any loss of any right or benefit under
the Option Agreement or Plan which such employee might otherwise have enjoyed but for termination
of employment, whether such compensation is claimed by way of damages for wrongful or unfair
dismissal, breach of contract or otherwise. By participating in the Plan, Optionee shall be deemed
to have accepted all the conditions of the Plan and the Option Agreement and the terms and
conditions of any rules and regulations adopted by the Committee and shall be fully bound
thereby.



               (d) Governing Law. The validity, construction and effect of the Plan and the
Option Agreement, and any rules and regulations relating to the Plan and the Option Agreement,
shall be determined in accordance with the internal laws, and not the law of conflicts, of the
State of Delaware.



               (e) Severability. If any provision of the Option Agreement is or becomes or
is deemed to be invalid, illegal or unenforceable in any jurisdiction or would disqualify the
Option Agreement under any law deemed applicable by the Committee (as defined in the Plan), such
provision shall be construed or deemed amended to conform to applicable laws, or if it cannot be so
construed or deemed amended without, in the determination of the Committee, materially altering the
purpose or intent of the Plan or the Option Agreement, such provision shall be stricken as to such
jurisdiction or the Option Agreement, and the remainder of the Option Agreement shall remain in
full force and effect.



               (f) No Trust or Fund Created. Neither the Plan nor the Option Agreement
shall create or be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Affiliate and Optionee or any other person.



               (g) Headings. Headings are given to the Sections and subsections of the
Option Agreement solely as a convenience to facilitate reference. Such headings shall not be deemed
in any way material or relevant to the construction or interpretation of the Option Agreement or
any provision thereof.



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               (h) Conditions Precedent to Issuance of Shares. Shares shall not be issued,
and the Company shall not have any liability for failure to issue Shares, pursuant to the exercise
of the Option unless such exercise and the issuance and delivery of the applicable Shares pursuant
thereto shall comply with all relevant provisions of law, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act of 1934, as amended, the rules and regulations
promulgated thereunder, the requirements of any applicable Stock Exchange and the Delaware General
Corporation Law. As a condition to the exercise of the purchase price relating to the Option, the
Company may require that the person exercising or paying the purchase price represent and warrant
that the Shares are being purchased only for investment and without any present intention to sell
or distribute such Shares if, in the opinion of counsel for the Company, such a representation and
warranty is required by law.



               (i) Withholding. In order to provide the Company with the opportunity to
claim the benefit of any income tax deduction which may be available to it upon the exercise of the
Option and in order to comply with all applicable federal or state income tax laws or regulations,
the Company may take such action as it deems appropriate to insure that, if necessary, all
applicable federal or state payroll, withholding, income or other taxes are withheld or collected
from Optionee.



               (j) Consultation With Professional Tax and Investment Advisors. The holder
of this Option Agreement acknowledges that the grant, exercise, vesting or any payment with respect
to this Option Agreement, and the sale or other taxable disposition of the Shares acquired pursuant
to the exercise thereof, may have tax consequences pursuant to the Code or under local, state or
international tax laws. The holder further acknowledges that such holder is relying solely and
exclusively on the holder’s own professional tax and investment advisors with respect to any and
all such matters (and is not relying, in any manner, on the Company or any of its employees or
representatives). Finally, the holder understands and agrees that any and all tax consequences
resulting from the Option Agreement and its grant, exercise, vesting or any payment with respect
thereto, and the sale or other taxable disposition of the Shares acquired pursuant to the Plan, is
solely and exclusively the responsibility of the holder without any expectation or understanding
that the Company or any of its employees or representatives will pay or reimburse such holder for
such taxes or other items.



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