Exhibit 10.5





Exhibit 10.5




PENN MILLERS STOCK INCENTIVE PLAN




STOCK OPTION AGREEMENT FOR




INCENTIVE STOCK OPTION




 






BETWEEN




PENN MILLERS HOLDING CORPORATION




AND




 






(the Optionholder)




Date of Award:




Number of Shares:




Exercise Price:




Option Expiration Date:



 


 









 





INCENTIVE STOCK OPTION AGREEMENT




Number of shares subject to option:
______

shares (the “Option”).



This Agreement dated
______

, 2009, between Penn Millers Holding Corporation (the
“Corporation”) and
__________________

(the “Optionholder”).



WITNESSETH:




1. Award of Option




Pursuant to the provisions of the Penn Millers Stock Incentive Plan (the “Plan”) the
Corporation hereby awards to the Optionholder, subject to the terms and conditions of the Plan and
subject further to the terms and conditions herein set forth, the right and option to purchase from
the Corporation all or any part of an aggregate of
______

shares of common stock (par value $0.01
per share) of the Corporation (“Common Stock”) at the exercise price of $  per share; such
option to be exercised as hereinafter provided.



2. Terms and Conditions




It is understood and agreed that the Option evidenced hereby is subject to the following terms
and conditions:




	 	(a)	 	Expiration Date. Subject to the provisions of Paragraph 2(d) hereof, the
Option awarded hereby shall expire on
______
[7 years from the date of grant].
	 
	 	(b)	 	Exercise of Option. Except as may be provided below, no part of this Option
may be exercised until the Optionholder has remained in the continuous employ of the
Corporation or of a Subsidiary for the following periods after the date hereof:





	 	 	 	 	 	 	 	 	 
	 	 	% of Shares	 	Number of
	Vesting Date	 	Vesting	 	Shares Vesting
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(20.0%) -	 	 	______ shares
	 

	 	 	(20.0%) -	 	 	______ shares
	 

	 	 	(20.0%) -	 	 	______ shares
	 

	 	 	(20.0%) -	 	 	______ shares
	 

	 	 	(20.0%) -	 	 	______ shares







	 	 	 	This Option may be exercised in whole at any time, or from time to time in part,
to the extent vested, prior to the expiration date specified in Paragraph 2(a)
hereof. Any exercise shall be accompanied by a written notice to the
Corporation specifying the number of shares as to which the Option is being
exercised. Notwithstanding the foregoing:






	 	(1)	 	upon the occurrence of a Change in Control, all unvested Options then held by
the Optionholder shall vest and become immediately excisable;




 


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	 	(2)	 	if the Optionholder’s employment with the Corporation or a Subsidiary terminates
due to death or Disability on or after the date in which the Optionholder (A)
reaches age 55 or (B) has completed 10 years of service with the Corporation or a
Subsidiary (including a predecessor of the Corporation or a Subsidiary), unvested
Options then held by the Optionholder shall vest and become immediately exercisable
on a pro-rata basis based on the number of full months that the Optionholder worked
at the Corporation or a Subsidiary during the period beginning on the day after the
most recent vesting date set forth in Section 2(b) and ending on the next scheduled
vesting date set forth in Section 2(b); and
	 
	 	(3)	 	if the Optionholder’s employment with the Corporation or a Subsidiary terminates
(other than for death, Disability, or by reason of a Termination or Dismissal for
Cause) on or after the Optionholder reaches age 65, unvested Options then held by
the Optionholder shall vest and become immediately exercisable on a pro-rata basis
based on the number of full months that the Optionholder worked at the Corporation
or a Subsidiary during the period beginning on the day after the most recent vesting
date set forth in Section 2(b) and ending on the next scheduled vesting date set
forth in Section 2(b).






	 	(c)	 	Payment of Exercise Price Upon Exercise. At the time of any exercise, the
exercise price of the shares as to which this Option may be exercised shall be paid in
cash or, subject to the conditions and limitations described in the Plan, by one of the
methods of payment set forth in the Plan for the exercise of an incentive stock option.
	 
	 	(d)	 	Exercise Upon Death, Being Disabled, or Other Termination of Employment.






	 	(1)	 	In the event of the termination of the Optionholder’s employment as an employee
of the Corporation or of a Subsidiary by reason of death or Disability, this Option
may be exercised, to the extent that the Optionholder was entitled to do so at the
date of termination of employment due to such cause, in whole at any time, or from
time to time in part, within one year after the Optionholder’s death or permanent
and total disability, but in no event later than the expiration date specified in
Paragraph 2(a) hereof.
	 
	 	(2)	 	If the Corporation or a Subsidiary terminates the employment of the Optionholder
(other than if the termination is a Termination or Dismissal for Cause), this Option
may be exercised, to the extent that the Optionholder was entitled to do so at the
date of termination of employment, in whole at any time, or from time to time in
part, within three months after the date of such termination, but in no event later
than the expiration date specified in Paragraph 2(a) hereof.
	 
	 	(3)	 	If the Optionholder’s employment with the Corporation or a Subsidiary is
voluntarily terminated by the Optionholder, then the option shall lapse on the date
of such termination of employment; provided, however, that if the Optionholder (A)
terminates for “Good Reason” (as such term is defined in an employment or similar
agreement applicable to the Optionholder) following a Change in Control or (B)
terminates on or after reaching age 65, this Option may be exercised, to the




 


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	 	 	 	extent that the Optionholder was entitled to do so at the date of termination of
employment, in whole at any time, or from time to time in part, within three months
after the date of such termination, but in no event later than the expiration date
specified in Paragraph 2(a) hereof.
	 
	 	(4)	 	Notwithstanding anything herein to the contrary, if the Optionholder’s
employment termination of employment is a Termination or Dismissal for Cause, all
rights to exercise this Option shall lapse on the date of such termination of
employment.






	 	(e)	 	Nontransferability. This Option shall not be transferable other than by
will or by the laws of descent and distribution. During the lifetime of the
Optionholder, this Option shall be exercisable only by the Optionholder.
	 
	 	(f)	 	Adjustments. In the event that the shares of Common Stock, as presently
constituted, shall be changed into or exchanged for a different number or kind of shares
of stock or other securities of the Corporation, or if the number of such shares of
Common Stock shall be changed through the payment of a stock dividend, stock split, or
reverse stock split, then the shares of Common Stock then subject to this Option and the
exercise price thereof shall be increased, decreased, or otherwise changed to such
extent and in such manner as may be necessary or appropriate to reflect any of the
foregoing events. If there shall be any other change in the number or kind of the
outstanding shares of the Common Stock, or of any stock or other securities into which
such Common Stock shall have been changed, or for which it shall have been exchanged,
and if a majority of the disinterested members of the Board shall, in its sole
discretion, determine that such change equitably requires an adjustment to the terms of
this Option, then such adjustment shall be made in accordance with such determination.
Any adjustment so made shall be final and binding upon the Optionholder.
	 
	 	(g)	 	No Rights as Shareholder. The Optionholder shall have no rights as a
shareholder with respect to any shares of Common Stock subject to this Option prior to
the date of issuance of a certificate or certificates for such shares.
	 
	 	(h)	 	No Right To Continued Employment. This Option shall not confer upon the
Optionholder any right to continue in the employ of the Corporation or any Subsidiary,
nor shall it interfere in any way with the right of the Corporation or any Subsidiary to
terminate the Optionholder’s employment at any time and for any reason.
	 
	 	(i)	 	Compliance with Law and Regulations. This Option and the obligation of the
Corporation to sell and deliver shares hereunder shall be subject to all applicable
federal and state laws, rules, and regulations and to such approvals by any government
or regulatory agency as may be required. The Corporation shall not be required to issue
or deliver any certificates for shares of Common Stock prior to (1) the listing of such
 shares on any stock exchange on which the Common Stock may then be listed and (2) the
completion of any registration or qualification of such
 shares under any federal or state law, or any rule or regulation of any government body
which the Corporation shall, in its sole discretion, determine to be necessary or
advisable.




 


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	 	(j)	 	Harmful Activity. Notwithstanding anything in this Agreement to the
contrary, if the Optionholder shall engage in any “harmful activity” while employed by
the Corporation or a Subsidiary or during the six-month period thereafter, then (i)
this Option, to the extent then unexercised and whether vested or unvested, shall
immediately be forfeited and canceled and (ii) any Profits realized upon the exercise
of this Option shall inure to the Corporation. If any Profits realized upon the
exercise of this Option inure to the benefit of the Corporation in accordance with this
Section, the Optionholder shall pay all such Profits to the Corporation within 30 days
after receiving written notice from the Corporation that the Optionholder has engaged
in a harmful activity. Consistent with the provisions of the Plan, the determination
by the Committee as to whether the Optionholder engaged in “harmful activity” while
employed by the Corporation or a Subsidiary or during the six-month period thereafter
shall be final and conclusive, unless otherwise determined by a majority of
disinterested members of the Board. For purposes of this Section 2(j), “Profits” shall
mean, with respect to this Option, the spread between the fair market value of a share
of Common Stock on the date of exercise and the exercise price, multiplied by the
number of shares exercised under this Option.






A “harmful activity” shall have occurred if the Optionholder shall do any one or
more of the following:




(1) Engage in any fraud or intentional misconduct that is a significant
contributing factor to the Corporation having to restate all or a portion of its
financial statement(s).




(2) Engage in activities that would constitute grounds for the Corporation or a
Subsidiary to terminate the Optionholder’s employment by reason of a Termination or
Dismissal for Cause (as defined in the Plan) or for Cause (as defined in an applicable
employment agreement between the Optionholder and the Corporation and/or a Subsidiary),
whether or not the Optionholder is employed at the time the Optionholder engages in
such activities.




(3) Solicit or hire any employees of the Corporation or a Subsidiary or induce any
of such employees to terminate their employment relationship with the Corporation or a
Subsidiary.




(4) Solicit, induce, or attempt to solicit or induce any customer, supplier, or
other entity doing business with the Corporation of a Subsidiary to cease doing
business with the Corporation or a Subsidiary or, in the case of a customer, to place
agribusiness insurance, as that term is commonly understood in the industry, with any
competitor of the Corporation or a Subsidiary. For purposes of the foregoing
provision, the term “customer” shall mean a business that the Corporation or a
Subsidiary insures on the date that the Optionholder’s employment terminates (or has
insured during the previous twelve months) and a broker who has placed business with
the Corporation or a Subsidiary on the date that the Optionholder’s
employment terminates but only with respect to those clients of the broker for
which the broker has placed business with the Corporation or a Subsidiary in the
12-month period preceding the date that the Optionholder’s employment terminates.


 


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(5) Directly or indirectly, own, manage, operate, render services for (as a
consultant or an advisor), or accept any employment with (i) Nationwide Agribusiness
Insurance Company, Michigan Millers Insurance Company, or Westfield Insurance Company,
or any of their successors in interest or (ii) the agribusiness insurance business of
any other insurance company whose business has, or could reasonably be expected to
have, a material adverse effect on the Corporation’s or a Subsidiary’s business
insurance business.




(6) Directly or indirectly, own, manage, operate, render services for (as a
consultant or an adviser), or accept any employment with, within a 50-mile radius of
Wilkes-Barre, Pennsylvania, any other property and casualty insurance or reinsurance
line of business to the extent that such ownership, management, operating, rendering of
services, or employment (and the activities necessarily incident thereto) have, or
could reasonably be expected to have, a material adverse effect on the Corporation’s or
a Subsidiary’s business insurance business.




(7) For any reason, in any fashion, form or manner, either directly or indirectly,
divulge, disclose or communicate to any person, firm, corporation, or other business
entity, in any manner whatsoever, any confidential information or trade secrets
concerning the business of the Corporation or a Subsidiary, including, without limiting
the generality of the foregoing, any customer lists or other customer identifying
information, the techniques, methods or systems of the Corporation’s or a Subsidiary’s
operations or management, any information regarding their respective financial matters,
or any other material information concerning the business of the Corporation or a
Subsidiary, their manner of operation, plan, or other material data. The provisions of
this subsection shall not apply to (i) information that is public knowledge other than
as result of Optionholder’s authorized disclosure; (ii) information disseminated by the
Corporation or a Subsidiary to third parties in the ordinary course of business; (iii)
information lawfully received by the Optionholder from a third party who, based upon
inquiry by the Optionholder, is not bound by a confidential relationship to the
Corporation or a Subsidiary; or (iv) information disclosed under a requirement of law
or as directed by applicable legal authority having jurisdiction over the Optionholder.



3. Investment Representation




The Corporation may require the Optionholder to furnish to the Corporation, prior to the
issuance of any shares upon the exercise of all or any part of this Option, an agreement (in such
form as the Corporation may specify) in which the Optionholder represents that the shares acquired
upon exercise are being acquired for investment and not with a view to the sale or distribution
thereof.


 


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4. Optionholder Bound by Plan




The Optionholder acknowledges receipt of a copy of the Plan and agrees that this Award shall
be subject to all of the terms and conditions set forth in the Plan, including future amendments
thereto, if any, pursuant to the terms thereof, which Plan is incorporated herein by reference as a
part of this Agreement. Capitalized terms used in this Agreement without definition shall have the
meanings assigned to them in the Plan.



5. Withholding of Taxes




The Corporation will require that, as a condition precedent to the exercise of this Option,
appropriate arrangements be made for the withholding of any applicable taxes. The obligation of
the Optionholder under this paragraph to provide for the payment of withholding taxes may be
satisfied, subject to the provisions of Section 7.2 of the Plan, by electing to have the
Corporation withhold certain of the shares that would otherwise be issuable pursuant to the
exercise of the Option awarded hereby.



6. Notices




Any notice hereunder to the Corporation shall be addressed to it at its office, 72 North
Franklin Street, P.O. Box P, Wilkes-Barre, PA 18773-0016; Attention:
 __________, (or to
such different address as the Corporation may designate in writing) and any notice hereunder to
Optionholder shall be addressed to him or her at the most recent address as shown in the employment
or stock records of the Corporation.



IN WITNESS WHEREOF, Penn Millers Holding Corporation has caused this Agreement to be executed
by a duly authorized officer and the Optionholder has executed this Agreement, both as of the day
and year first above written.



	 	 	 	 	 	 
	PENN MILLERS

HOLDING CORPORATION

 	 	
OPTIONHOLDER	 
	By  	 	 	 	 
	 	Douglas A. Gaudet                           	 	(Signature) 	 
	 	President and Chief Executive Officer 	 	 	 
	 




 


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