<PAGE>
As Filed With the Securities and Exchange Commission on July 30, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
______________________
SM&A CORPORATION
----------------------
(Exact name of registrant as specified in its charter)
California 33-0080929
---------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4695 MacArthur Court, Eighth Floor, Newport Beach, California 92660
-------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
SM&A CORPORATION
AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
-------------------------------------------------
(Full title of the plan)
Michael A. Piraino
President and Chief Operating Officer
SM&A CORPORATION
4695 MacArthur Court, Eighth Floor
Newport Beach, California 92660
-------------------------------
(Name and address of agent for service)
(949) 975-1550
--------------
(Telephone number, including area code, of agent for service)
COPY TO:
-------
Thomas J. Crane, Esq.
Rutan & Tucker, LLP
611 Anton Boulevard, Fourteenth Floor
Costa Mesa, California 92626
(714) 641-5100
Calculation of Registration Fee
<TABLE>
<CAPTION>
=========================================================================================================
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered price per unit offering price/(1)/ registration fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value. 250,000 Shares $7.875 $1,968,750 $547.31
=========================================================================================================
</TABLE>
(1) Computed pursuant to Rules 457(c) and 457(h) on the basis of the high and
low sales price reported on the NASDAQ National Market on July 27, 1999.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information.
----------------
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
ITEM 2. Registrant Information and Employee Plan Annual Information.
-----------------------------------------------------------
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents are incorporated by reference in this
Registration Statement:
(a) Annual Report of SM&A Corporation (the "Registrant") on Form 10-K
(File No. 0-23585) for the fiscal year ended December 31, 1998, filed with the
Commission on March 31, 1999.
(b) Registrant's Proxy Statement dated April 19, 1999, filed in
connection with the Registrant's Annual Meeting of Shareholders held on May 18,
1999.
(c) Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999, filed with the Securities and Exchange Commission (the
"Commission") on May 17, 1999.
(d) All reports of the Registrant filed pursuant to Section 13(a) and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the fiscal year ended December 31, 1998;
(e) The description of the Registrant's securities contained in the
Registrant's registration statement on Form 8-A (File No. 000-23585) filed under
the Exchange Act on January 5, 1997, together with any amendment or report
filed pursuant to such Exchange Act amending or updating such description.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold, or which deregisters all securities remaining
unsold, shall be deemed incorporated by reference into this Registration
Statement and shall be a part hereof from the date of filing such documents.
ITEM 4. Description of Securities.
-------------------------
Not Applicable
-2-
<PAGE>
ITEM 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable
ITEM 6. Indemnification of Directors and Officers.
-----------------------------------------
The Registrant's Amended and Restated Articles of Incorporation (the
"Articles") provide that the liability of the Registrant's directors for
monetary damages shall be eliminated to the fullest extent permissible under
California law. This is intended to eliminate the personal liability of a
director for monetary damages in an action brought by or in the right of the
Registrant for breach of a director's duties to the Registrant or its
shareholders except for liability: (i) for acts or omissions that involve
intentional misconduct or a knowing and culpable violation of law; (ii) for acts
or omissions that a director believes to be contrary to the best interest of the
Registrant or its shareholders or that involve the absence of good faith on the
part of the director; (iii) for any transaction for which a director derived an
improper benefit; (iv) for acts or omissions that show a reckless disregard for
the director's duty to the Registrant or its shareholders in circumstances in
which the director was aware, or should have been aware, in the ordinary course
of performing a director's duties, of a risk of serious injury to the Registrant
or its shareholders; (v) for acts or omissions that constitute an unexcused
pattern of inattention that amounts to an abdication of the director's duty to
the Registrant or its shareholders; (vi) with respect to certain transactions,
or the approval of transactions in which a director has a material financial
interest; and (vii) expressly imposed by statute, for approval of certain
improper distributions to shareholders or certain loans or guarantees.
The Articles also authorize the Registrant to provide indemnification
to its agents (as defined in Section 317 of the California Corporations Code),
through the Registrant's Amended and Restated Bylaws (the "Bylaws") or through
agreements with such agents or both, for breach of duty to the Registrant and
its shareholders, in excess of the indemnification to agents or both, for breach
of duty to the Registrant and its shareholders, in excess of the indemnification
otherwise permitted by Section 317 of the California Corporations Code, subject
to the limits on such excess indemnification set forth in Section 204 of the
California Corporations Code.
The Bylaws of the Registrant provide for indemnification of the
Registrant's officers, directors, employees, and other agents to the extent and
under the circumstances permitted by California law. The Bylaws further provide
that no indemnification shall be made in the case of a derivative suit in
respect to any claim as to which such person has been adjudged to be liable to
the Corporation, except with court approval, nor shall indemnification be made
for amounts paid in settling or otherwise disposing of a pending action without
court approval, or for expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval. Indemnification under
the Bylaws is mandatory in the case of an agent of the Registrant (present or
past) who is successful on the merits in defense of a suit against him or her in
such capacity. In all other cases where indemnification is permitted by the
Bylaws, a determination to indemnify such person must be made by a majority of a
quorum of disinterested directors (if a quorum of directors is not obtainable,
by independent legal counsel in a written legal opinion), a majority of
disinterested shareholders, or the court in which the suit is pending.
The Registrant has entered into agreements to indemnify its directors
and executive officers in addition to the indemnification provided for in the
Articles and Bylaws. Among other things, these agreements provide that the
Registrant will indemnify, subject to certain requirements, each of the
Registrant's directors and executive officers for certain expenses (including
attorneys' fees), judgments, fines and settlement amounts incurred by such
person in any action or proceeding, including any action by or in the rights of
the Registrant, on account of services by such person as a director or officer
of the Registrant, or as a director or officer of any other company or
enterprise to which the person provides services at the request of the
Registrant.
-3-
<PAGE>
ITEM 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable
ITEM 8. Exhibits.
--------
4.1 SM&A Corporation Amended and Restated Employee Stock Purchase
Plan.
5 Opinion of Rutan & Tucker, LLP.
23.1 Consent of Rutan & Tucker, LLP (included in Exhibit 5).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (see p. 7).
ITEM 9. Undertakings.
------------
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement (unless the
information required by paragraphs (i) and (ii) below is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement):
(i) To include any prospectus required by Section 10(a)(3) of
the Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at the time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be
-4-
<PAGE>
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Newport Beach, State of California on July 20, 1999.
SM&A CORPORATION,
a California Corporation
By: /S/ MICHAEL A. PIRAINO
------------------------
Michael A. Piraino, President, Executive Vice
President and Chief Operating Officer
-6-
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael A. Piraino and Edward A. Beeman,
jointly and severally, his attorneys-in-fact and agents, each with the power of
substitution and resubstitution, for him and in his name, place or stead, in any
and all capacities, to sign any amendment to this Registration Statement on Form
S-8, and to file such amendments, together with exhibits and other documents in
connection therewith, with the Securities and Exchange Commission, granting to
each attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully as he might or could do in person, and ratifying and
confirming all that the attorneys-in-fact and agents, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons, including a
majority of the Board of Directors, in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------- -------------------------------------- -------------
<S> <C> <C>
/S/ STEVEN S. MYERS Chairman of the Board and Chief July 20, 1999
- --------------------------
Executive Officer (Principal
Steven S. Myers Executive Officer)
/S/ MICHAEL A. PIRAINO President, Executive Vice President, July 20, 1999
- --------------------------
Michael A. Piraino Chief Operating Officer and Director
/S/ EDWARD A. BEEMAN Senior Vice President, Chief July 20, 1999
- --------------------------
Edward A. Beeman Financial Officer and Secretary
(Principal Financial Officer and
Principal Accounting Officer)
/S/ J. CHRISTOPHER LEWIS Director July 20, 1999
- --------------------------
J. Christopher Lewis
/S/ MALCOLM R. CURRIE Director July 20, 1999
- --------------------------
Malcolm R. Currie
/S/ JAMES R. MELLOR Director July 20, 1999
- --------------------------
James R. Mellor
</TABLE>
-7-
<PAGE>
EXHIBITS INDEX
4.1 SM&A Corporation Amended and Restated Employee Stock Purchase Plan
5 Opinion of Rutan & Tucker, LLP
23.1 Consent of Rutan & Tucker, LLP (included in Exhibit 5)
23.2 Consent of KPMG LLP
24.1 Power of Attorney (see p. 7)
-8-
<PAGE>
Exhibit 4.1
AMENDED AND RESTATED
EMPLOYEE STOCK PURCHASE PLAN
THIS AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN (the "Plan") was
-----
established by SM&A Corporation, a California corporation (the "Company")
-------
effective as of March 1, 1999 (the "Effective Date"). The Plan has been amended
--------------
and restated as provided herein effective as of July 1, 1999.
ARTICLE 1
PURPOSE OF THE PLAN
-------------------
1.1 Purpose. The Company has determined that it is in its best interest
-------
to provide incentives to attract and retain employees and to increase employee
morale by providing a program through which employees of the Company, and the
Company's subsidiaries as the Company's Board of Directors (the "Board of
--------
Directors") may from time to time designate (each a "Designated Subsidiary," and
- --------- ---------------------
collectively, "Designated Subsidiaries"), may acquire a proprietary interest in
-----------------------
the Company through the purchase of shares of the Common Stock of the Company
("Company Stock"). The Plan is hereby established by the Company to permit
-------------
employees to subscribe for, and purchase directly from the Company, shares of
the Company Stock at a discount from the market price and to pay the purchase
price in installments by payroll deductions. The Plan is intended to qualify as
an "employee stock purchase plan" under Section 423 of the Internal Revenue Code
of 1986, as amended from time to time (the "Code"). Accordingly, the provisions
----
of the Plan shall be administered, interpreted, and construed in a matter
consistent with the requirements of that section of the Code. The Plan is not
intended to be an employee benefit plan under the Employee Retirement Income
Security Act of 1974, and therefore is not required to comply with that Act.
ARTICLE 2
DEFINITIONS
-----------
2.1 Compensation. "Compensation" means wages, tips, overtime pay,
------------ ------------
bonuses, commissions, and other Compensation reported on Form W-2. Compensation
shall include any amounts contributed by the Employer pursuant to a salary
reduction agreement that is not currently includible in the Participant's gross
income by reason of the application of Code Sections 125, 402(e)(3), 402(g)(3),
402(h)(1)(B), 403(b), 414(h)(2), or 457(b). Compensation excludes the sum of all
of the following items, even if otherwise includible in gross income: (i)
reimbursements or other expense allowances; (ii) cash and noncash fringe
benefits; (iii) moving expenses; (iv) deferred compensation; and (v) welfare
benefits.
2.2 Eligibility Date. "Eligibility Date" means ninety (90) calendar days
---------------- ----------------
from an Employee's initial date of employment with the Company or any of its
Designated Subsidiaries.
2.3 Employee. "Employee" means each person currently employed by the
-------- --------
Company or any of its Designated Subsidiaries, any portion of whose income is
subject to withholding of income tax or for whom Social Security retirement
contributions are made by the Company or any Designated Subsidiary and excluding
any persons employed by the Company or any Designated Subsidiary on a part-time
or temporary basis.
<PAGE>
2.4 Enrollment Date. "Enrollment Date" means the first day of each
--------------- ---------------
Offering Period (January 1 and July 1) under the Plan. However, for the first
Offering Period, the Enrollment Date shall be July 1, 1999 and shall extend
through July 31, 1999.
2.5 Five Percent (5%) Owner. "5% Owner" means an Employee who,
----------------------- --------
immediately after the grant of any rights under the Plan, would own Company
Stock or hold outstanding options to purchase Company Stock possessing five
percent (5%) or more of the total combined voting power of all classes of stock
of the Company. For purposes of this Section, the ownership attribution rules
of Code Section 425(d) shall apply.
2.6 Offering Period. "Offering Period" means the six-month periods from
--------------- ---------------
January 1 through June 30 and July 1 through December 31 of each Plan Year. The
first Offering Period shall commence on July 1, 1999 and shall end December 31,
1999.
2.7 Participant. "Participant" means an Employee who has satisfied the
----------- -----------
eligibility requirements of Section 3.1 and has become a participant in the Plan
-----------
in accordance with Section 3.2.
-----------
2.8 Plan Year. "Plan Year" means the twelve consecutive month period
--------- ---------
ending on the last day of December.
2.9 Purchase Date. "Purchase Date" means the last day of each Offering
------------- -------------
Period (June 30 or December 31).
ARTICLE 3
ELIGIBILITY AND PARTICIPATION
-----------------------------
3.1 Eligibility. Subject to limitations imposed by Section 423(b) of the
-----------
Code, each Employee of the Company or any Designated Subsidiary may become a
Participant in the Plan on the Enrollment Date coincident with or next following
the Eligibility Date.
3.2 Participation. An Employee who has satisfied the eligibility
-------------
requirements of Section 3.1 may become a Participant in the Plan upon his
-----------
completion and delivery to the Human Resources Department of the Company of a
stock purchase agreement provided by the Company (the "Stock Purchase
--------------
Agreement") authorizing payroll deductions. Payroll deductions for a
- ---------
Participant shall commence on the Enrollment Date coincident with or next
following the filing of the Participant's Stock Purchase Agreement and shall
remain in effect until revoked by the Participant by the filing of a notice of
withdrawal from the Plan under Article 8 or by the filing of a new Stock
---------
Purchase Agreement providing for a change in the Participant's payroll deduction
rate in accordance with Section 5.2.
-----------
3.3 Special Rules. Under no circumstances shall:
-------------
(a) A 5% Owner be granted a right to purchase Company Stock under
the Plan;
(b) A Participant be entitled to purchase Company Stock under the
Plan which, when aggregated with all other employee stock purchase plans of
the Company, exceed an amount equal to the Aggregate Maximum. "Aggregate
---------
Maximum" means an amount equal
-------
<PAGE>
to $20,000 worth of Company Stock (determined using the fair market value
of such Company Stock at each applicable Enrollment Date) during each
calendar year; or
(c) The number of shares of Company Stock purchasable by a
Participant on any Purchase Date exceed 5,000 shares, subject to periodic
adjustments under Section 10.4.
------------
ARTICLE 4
OFFERING PERIOD
---------------
The initial grant of the right to purchase Company Stock under the Plan
shall occur on July 1, 1999 and terminate on December 31, 1999. Thereafter, the
Plan shall provide for Offering Periods commencing on each Enrollment Date and
terminating on the next following Purchase Date.
ARTICLE 5
PAYROLL DEDUCTIONS
------------------
5.1 Participant Election. Upon completion of the Stock Purchase
--------------------
Agreement, each Participant shall designate the amount of payroll deductions to
be made from his or her paycheck to purchase Company Stock under the Plan. The
amount of payroll deductions shall be designated in whole percentages of
Compensation, not to exceed 15%. The amount so designated upon the Stock
Purchase Agreement shall be effective as of the next payroll period and shall
continue until terminated or altered in accordance with Section 5.2 below.
-----------
5.2 Changes in Election. A Participant may terminate participation in
-------------------
the Plan at any time prior to the close of an Offering Period as provided in
Article 8. A Participant may increase or decrease the rate of payroll
- ---------
deductions once during each Offering Period by completing and delivering to the
Human Resources Department of the Company a new Stock Purchase Agreement setting
forth the desired change. A Participant may also terminate payroll deductions
and have accumulated deductions for the Offering Period applied to the purchase
of Company Stock as of the next Purchase Date by completing and delivering to
the Human Resources Department a new Stock Purchase Agreement setting forth the
desired change. Any change under this Section shall become effective on the
next payroll period (to the extent practical under the Company's payroll
practices) following the delivery of the new Stock Purchase Agreement.
5.3 Participant Accounts. The Company shall establish and maintain a
--------------------
separate account ("Account") for each Participant. The amount of each
-------
Participant's payroll deductions shall be credited to his / her Account. No
interest will be paid or allowed on amounts credited to a Participant's Account.
All payroll deductions received by the Company under the Plan are general
corporate assets of the Company and may be used by the Company for any corporate
purpose. The Company is not obligated to segregate such payroll deductions.
ARTICLE 6
GRANT OF PURCHASE RIGHTS
------------------------
6.1 Right to Purchase Shares. On each Purchase Date, each Participant
------------------------
shall have the right to purchase at the price determined under Section 6.2 that
-----------
number of whole shares of Company
------------
<PAGE>
Stock that can be purchased or issued by the Company based upon that price with
the amounts held in his Account, subject to the limits set forth in Section 3.3.
-----------
In the event that there are amounts held in a Participant's Account that are not
used to purchase Company Stock, such amounts shall remain in the Participant's
Account and shall be eligible to purchase Company Stock in any subsequent
Offering Period.
6.2 Purchase Price. The purchase price for any Offering Period shall be
--------------
the lesser of:
(a) 85% of the Fair Market Value of Company Stock on the Enrollment
Date; or
(b) 85% of the Fair Market Value of Company Stock on the Purchase
Date.
6.3 Fair Market Value. "Fair Market Value" shall be determined as
----------------- -----------------
follows:
(a) If the Company Stock is then listed or admitted to trading on
the NASDAQ National Market or a stock exchange which reports closing sale
prices, the Fair Market Value shall be the closing sale price on the date
of valuation on the NASDAQ National Market or principal stock exchange on
which the Company Stock is then listed or admitted to trading, or, if no
closing sale price is quoted or no sale takes place on such day, then the
Fair Market Value shall be the closing sale price of the Company Stock on
the NASDAQ National Market or such exchange on the next preceding day on
which a sale occurred.
(b) If the Company Stock is not then listed or admitted to trading
on the NASDAQ National Market or a stock exchange which reports closing
sale prices, the Fair Market Value shall be the average of the closing bid
and asked prices of the Company Stock in the over-the-counter market on the
date of valuation.
(c) If neither (a) nor (b) is applicable as of the date of
valuation, then the Fair Market Value shall be determined by the
Administrator (see Section 7.2) in good faith using any reasonable method
of valuation, which determination shall be conclusive and binding on all
interested parties.
ARTICLE 7
PURCHASE OF STOCK
-----------------
7.1 Purchase of Company Stock. A Participant who does not, prior to a
-------------------------
Purchase Date, notify the Company that such Participant does not want to
purchase any shares of Company Stock pursuant to the Plan or that such
Participant wants to purchase fewer than the maximum number of shares available
for purchase, shall be deemed to elect to purchase the maximum number of whole
shares of Company Stock purchasable with the amounts held in such Participant's
Account, at the purchase price determined under Section 6.2 above and, on each
Purchase Date, the Plan shall purchase such shares on behalf of such
Participant." In the event that there are amounts held in a Participant's
Account that are not used to purchase Company Stock, all such amounts shall be
held in the Participant's Account and carried forward to the next Offering
Period.
<PAGE>
7.2 Delivery of Company Stock.
-------------------------
(a) Company Stock acquired under the Plan shall be issued directly
to a contract administrator ("Administrator") engaged by the Company to
-------------
administer the Plan under Article 9. All Company Stock so issued ("Plan
--------- ----
Held Stock") shall be held in the name of the Administrator for the benefit
----------
of the Plan. The Administrator shall maintain accounts for the benefit of
the Participants that shall reflect each Participant's interest in the Plan
Held Stock. Such accounts shall reflect the number of whole shares of
Company Stock that are being held by the Administrator for the benefit of
each Participant.
(b) Where Company Stock is issued under this paragraph, only full
shares of stock will be issued to a Participant. The time of issuance and
delivery of shares may be postponed for such period as may be necessary to
comply with the registration requirements under the Securities Act of 1933,
as amended, the listing requirements of any securities exchange on which
the Company Stock may then be listed, or the requirements under other laws
or regulations applicable to the issuance or sale of such shares.
ARTICLE 8
WITHDRAWAL
----------
8.1 In Service withdrawal. At any time prior to the Purchase Date of an
---------------------
Offering Period, any Participant may withdraw the amounts held in his/her
Account by executing and delivering to the Human Resources Department of the
Company written notice of withdrawal on the form provided by the Company. In
such a case, the entire balance of the Participant's Account shall be paid to
the Participant, without interest, as soon as is practicable. Upon such
notification, the Participant shall cease to participate in the Plan for the
remainder of the Offering Period in which the notice is given. Any Employee who
has withdrawn under this Section shall be excluded from participation in the
Plan for the remainder of the Offering Period, but may then be reinstated as a
participant for a subsequent Offering Period by executing and delivering a new
Stock Purchase Agreement to the Human Resources Department of the Company.
8.2 Termination of Employment.
-------------------------
(a) In the event that a Participant's employment with the Company
terminates for any reason, the Participant shall cease to participate in
the Plan on the date of termination. As soon as is practical following the
date of termination, the entire balance of the Participant's Account shall
be paid to the Participant or his beneficiary, without interest.
(b) A Participant may file a written designation of a beneficiary
who is to receive any shares of Company Stock purchased under the Plan or
any cash from the Participant's Account in the event of his or her death
subsequent to a Purchase Date, but prior to delivery of such shares and
cash. In addition, a Participant may file a written designation of a
beneficiary who is to receive any cash from the Participant's Account under
the Plan in the event of his death prior to a Purchase Date under paragraph
(a) above.
(c) Any beneficiary designation under paragraph (b) above may be
changed by the Participant at any time by written notice. In the event of
the death of a Participant, the Committee (see Section 9.1) may rely upon
the most recent beneficiary designation it has on file as being the
appropriate beneficiary. In the event of the death of a Participant where
no valid beneficiary
<PAGE>
designation exists or the beneficiary has predeceased the Participant, the
Committee shall deliver any cash or shares of Company Stock to the executor
or administrator of the estate of the Participant, or if no such executor
or administrator has been appointed to the knowledge of the Committee, the
Committee, in its sole discretion, may deliver such shares of Company Stock
or cash to the spouse or any one or more dependents or relatives of the
Participant, or if no spouse, dependent or relative is known to the
Committee, then to such other person as the Committee may designate.
ARTICLE 9
PLAN ADMINISTRATION
-------------------
9.1 Plan Administration.
-------------------
(a) Authority to control and manage the operation and administration
of the Plan shall be vested in the Board of Directors (the "Board") for the
-----
Company, or a committee ("Committee") thereof. The Board or Committee shall
---------
have all powers necessary to supervise the administration of the Plan and
control its operations.
(b) In addition to any powers and authority conferred on the Board
or Committee elsewhere in the Plan or by law, the Board or the Committee
shall have the following powers and authority:
(i) To designate agents to carry out responsibilities
relating to the Plan;
(ii) To administer, interpret, construe and apply this
Plan and to answer all questions which may arise or which may be
raised under this Plan by a Participant, his beneficiary or any other
person whatsoever;
(iii) To establish rules and procedures from time to time
for the conduct of its business and for the administration and
effectuation of its responsibilities under the Plan; and
(iv) To perform or cause to be performed such further acts
as it may deem to be necessary, appropriate, or convenient for the
operation of the Plan.
(c) Any action taken in good faith by the Board or Committee in the
exercise of authority conferred upon it by this Plan shall be conclusive
and binding upon a Participant and his beneficiaries. All discretionary
powers conferred upon the Board shall be absolute.
9.2 Limitation on Liability. No Employee of the Company or member of the
-----------------------
Board or Committee shall be subject to any liability with respect to his duties
under the Plan unless the person acts fraudulently or in bad faith. To the
extent permitted by law, the Company shall indemnify each member of the Board or
Committee, and any other Employee of the Company with duties under the Plan who
was or is a party, or is threatened to be made a party, to any threatened,
pending or completed proceeding, whether civil, criminal, administrative, or
investigative, by reason of the person's conduct in the performance of his
duties under the Plan.
<PAGE>
ARTICLE 10
COMPANY STOCK
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10.1 Limitations on Purchase of Shares. The maximum number of shares of
---------------------------------
Company Stock that shall be made available for sale under the Plan shall be
250,000 shares, subject to adjustment under Section 10.4 below. The shares of
------------
Company Stock to be sold to Participants under the Plan will be issued by the
Company. If the total number of shares of Company Stock that would otherwise be
issuable pursuant to rights granted pursuant to Section 6.1 of the Plan at the
-----------
Purchase Date exceeds the number of shares then available under the Plan, the
Company shall make a pro rata allocation of the shares remaining available in as
uniform and equitable manner as is practicable. In such event, the Company
shall give written notice of such reduction of the number of shares to each
participant affected thereby and any unused payroll deductions shall be returned
to such participant if necessary.
10.2 Voting Company Stock. The Participant will have no interest or
--------------------
voting right in shares to be purchased under Section 6.1 of the Plan until such
-----------
shares have been purchased.
10.3 Registration of Company Stock. Shares to be delivered to a
-----------------------------
Participant under the Plan will be registered in the name of the Participant
unless designated otherwise by the Participant.
10.4 Changes in Capitalization of the Company. Subject to any required
----------------------------------------
action by the shareholders of the Company, the number of shares of Company Stock
covered by each right under the Plan which has not yet been exercised and the
number of shares of Company Stock which have been authorized for issuance under
the Plan but have not yet been placed under rights or which have been returned
to the Plan upon the cancellation of a right, as well as the Purchase Price per
share of Company Stock covered by each right under the Plan which has not yet
been exercised, shall be proportionately adjusted for any increase or decrease
in the number of issued shares of Company Stock resulting from a stock split,
stock dividend, spin-off, reorganization, recapitalization, merger,
consolidation, exchange of shares or the like. Such adjustment shall be made by
the Board of Directors for the Company, whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided herein, no
issue by the Company of shares of stock of any class, or securities convertible
into shares of stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of Company
Stock subject to any right granted hereunder.
10.5 Merger of Company. In the event that the Company at any time
-----------------
proposes to merge into, consolidate with or enter into any other reorganization
pursuant to which the Company is not the surviving entity (including the sale of
substantially all of its assets or a "reverse" merger in which the Company is
the surviving entity), then, to the extent permitted by applicable law: (i) any
surviving corporation shall assume the rights theretofore granted or substitute
for such rights new rights covering the shares of a successor corporation, with
appropriate adjustments as to the number and kind of shares and prices, or (ii)
the Plan and the rights theretofore granted shall continue in full force and
effect. In the event any surviving corporation refuses to assume or continue
the Plan, or to substitute similar options for those under the Plan, then the
Board of Directors or its committee shall cause written notice of the proposed
action to be given to the persons holding rights not less than 10 days prior to
the anticipated effective date of the proposed transaction and, concurrent with
the effective date of the proposed transaction, such rights shall be exercised
automatically in accordance with Section 7.1 as if such effective date were a
Purchase Date of the applicable Offering Period unless a Participant withdraws
from the Plan as provided in Section 8.1.
<PAGE>
ARTICLE 11
MISCELLANEOUS
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11.1 Amendment and Termination. The Plan shall terminate on December 31,
-------------------------
2008. Since future conditions affecting the Company cannot be anticipated or
foreseen, the Company reserves the right to amend, modify, or terminate the Plan
at any time. Upon termination of the Plan, all benefits shall become payable
immediately. Notwithstanding the foregoing, no such amendment or termination
shall affect rights previously granted, nor may an amendment make any change in
any right previously granted which adversely affects the rights of any
Participant. In addition, no amendment may be made without prior approval of
the shareholders of the Company if such amendment would:
(a) Increase the number of shares of Company Stock that may be
issued under the Plan;
(b) Materially modify the requirements as to eligibility for
participation in the Plan; or
(c) Materially increase the benefits that accrue to Participants
under the Plan.
11.2 Shareholder Approval. Continuance of the Plan and the effectiveness
--------------------
of any right granted hereunder shall be subject to approval by the shareholders
of the Company, within twelve months before or after the date the Plan is
adopted by the Board.
11.3 Benefits Not Alienable. Benefits under the Plan may not be assigned
----------------------
or alienated, whether voluntarily or involuntarily. Any attempt at assignment,
transfer, pledge or other disposition shall be without effect, except that the
Company may treat such act as an election to withdraw funds in accordance with
Article 8.
11.4 No Enlargement of Employee Rights. This Plan is strictly a voluntary
---------------------------------
undertaking on the part of the Company and shall not be deemed to constitute a
contract between the Company and any Employee or to be consideration for, or an
inducement to, or a condition of, the employment of any Employee. Nothing
contained in the Plan shall be deemed to give the right to any Employee to be
retained in the employ of the Company or to interfere with the right of the
Company to discharge any Employee at any time.
11.5 Governing Law. To the extent not preempted by Federal law, all legal
-------------
questions pertaining to the Plan shall be determined in accordance with the laws
of the State of California.
11.6 Non-business Days. When any act under the Plan is required to be
-----------------
performed on a day that falls on a Saturday, Sunday or legal holiday, that act
shall be performed on the next succeeding day which is not a Saturday, Sunday or
legal holiday. Notwithstanding the above, Fair Market Value shall be determined
in accordance with Section 6.3.
-----------
11.7 Compliance With Securities Laws. Notwithstanding any provision of
-------------------------------
the Plan, the Committee shall administer the Plan in such a way to ensure that
the Plan at all times complies with any requirements of Federal Securities Laws.
<PAGE>
Exhibit 5
July 27, 1999
SM&A Corporation.
4695 MacArthur Court, Eighth Floor
Newport Beach, California 92660
Ladies and Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8 (the "Registration Statement") to be filed by SM&A Corporation (the
"Company") with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, for the purpose of registering the sale of
250,000 shares of Common Stock of the Company upon the purchase of shares under
the Company's Employee Stock Purchase Plan. We are familiar with the
proceedings taken and proposed to be taken in connection with the issuance and
sale of the securities in the manner set forth in the Registration Statement.
Subject to completion of the proceedings contemplated in connection with the
foregoing matters, we are of the opinion that all of the Common Stock to be sold
pursuant to the Registration Statement has been duly authorized and, when issued
and sold in the manner set forth in the Registration Statement will, upon such
issuance and sale, be validly and legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement or any amendment thereto.
Respectfully submitted,
/s/ RUTAN & TUCKER, LLP
-17-
<PAGE>
Exhibit 23.2
Consent of Independent Auditors
To the Board of Directors and Shareholders
SM&A Corporation:
We consent to incorporation by reference of our report dated January 25,
1999, except for notes 5 and 13 which are dated as of March 12, 1999, which
appears in the December 31, 1998 annual report on Form 10-K.
/s/ KPMG LLP
Orange County, California
July 30, 1999
-18-
