<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 20, 1996
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
BTG, INC.
(Exact name of registrant as specified in its charter)
VIRGINIA
(State or other jurisdiction of
incorporation or organization)
54-1194161
(IRS employer identification number)
1945 OLD GALLOWS ROAD
VIENNA, VIRGINIA 22182
(703) 556-6518
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
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BTG, INC. 1995 EMPLOYEE STOCK OPTION PLAN
BTG, INC. DIRECTORS STOCK OPTION PLAN
BTG, INC. AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
------------------------
EDWARD H. BERSOFF
C/O BTG, INC.
1945 OLD GALLOWS ROAD
VIENNA, VIRGINIA 22182
(703) 556-6518
(Name, address and telephone number of Agent for Service)
Copy to:
DAVID B.H. MARTIN, JR.
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
(202) 637-6858
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE (1) PRICE (1) FEE
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<S> <C> <C> <C> <C>
Common Stock 850,000 $13.56 $11,528,125 $3,975.22
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) of the Securities Act of 1933, as amended.
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<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
have been and/or will be sent or given to employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). In
accordance with the instructions to Part I of Form S-8, such documents will not
be filed with the Securities and Exchange Commission (the "Commission") either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act. These documents and
the documents incorporated by reference pursuant to Item 3 of Part II of this
registration statement, taken together, constitute the prospectus as required
by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This registration statement registers additional shares of the
Company's Common Stock for which a registration statement on Form S-8 relating
to the Company's 1995 Employee Stock Option Plan and Amended and Restated
Employee Stock Purchase Plan is effective. This registration statement hereby
incorporates by reference the contents of such earlier registration statement
on Form S-8 (File No. 33-97302). This registration statement also registers
shares of the Company's Common Stock issuable in connection with the Company's
Directors Stock Option Plan.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
BTG, Inc. (the "Company") hereby incorporates by reference
into this registration statement the following documents filed by it with the
Commission:
(a) The Company's Registration Statement on Form S-8
(File No. 33-97302).
(b) The Company's report on Form 10-K for the 12 months
ended March 31, 1996.
(c) The Company's quarterly report on Form 10-Q for the
quarter ended June 30, 1996.
(d) The description of the Company's common stock
("Common Stock"), contained in the Company's
registration statement on Form 8-A filed with the
Commission on November 8, 1994 pursuant to Section 12
of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, all documents and reports filed by the Company
subsequent to the date hereof 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 have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference in
this registration statement and to be part hereof from the date of filing of
such documents or reports. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any
<PAGE> 3
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
A description of the Company's Common Stock is incorporated by
reference under
Item 3.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 10 of the Company's Amended and Restated Articles of
Incorporation provides that the Company will, to the fullest extent permitted
by the laws of Virginia, indemnify an individual who is or was a director or
officer of the Company and who was, is, or is threatened to be made a named
defendant or respondent in any threatened, pending or completed action, suit,
or proceeding, whether civil, criminal, administrative or investigative and
whether formal or informal (collectively, a "proceeding"), against any
obligation to pay a judgment, settlement, penalty, fine (including any excise
tax assessed with respect to any employee benefit plan) or other liability and
reasonable expenses (including counsel fees) incurred with respect to such a
proceeding, except such liabilities and expenses as are incurred because of
such director's or officer's willful misconduct or knowing violation of the
criminal law.
Article 10 also provides that unless a determination has been
made that indemnification is not permissible, the Company will make advances
and reimbursements for expenses reasonably incurred by a director or officer in
a proceeding as described above upon receipt of an undertaking from such
director or officer to repay the same if it is ultimately determined that such
director or officer is not entitled to indemnification.
Article 10 also provides that unless a determination has been
made that indemnification under such Article 10 is permissible, the
authorization of such indemnification (if applicable), and the evaluation as to
the reasonableness of expenses in a specific case shall be made as provided by
law. Special legal counsel selected to make determinations under such Article
10 may be counsel for the Company. The termination of a proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent will not of itself create a presumption that a director or
officer acted in such a manner as to make him or her ineligible for
indemnification.
For the purposes of Article 10, every reference to a director
or officer includes, without limitation, (i) every individual who is a director
or officer of the Company, (ii) an individual who, while a director or officer,
is or was serving at the Company's request as a director, officer, partner,
trustee, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
(iii) an individual who formerly was a director or officer of the Company or
who, while a director or officer, occupied at the request of the Company any of
the other positions referred to in clause (ii) of this sentence, and (iv) the
estate, personal representative, heirs, executors and administrators of a
director or officer of the Company or other person referred to herein. Service
as a director, officer, partner, trustee, employee or agent of another foreign
or domestic corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise controlled by the Company shall be deemed service at
the request of the Company. A director or officer shall be deemed to be
serving an employee benefit plan at the Company's request
<PAGE> 4
if such person's duties to the Company also impose duties on or otherwise
involve services by such person to the plan or to participants in or
beneficiaries of the plan.
Section 13.1-704(B) of the Virginia Stock Corporation Act
provides that a corporation may provide indemnification and make provision for
advances and reimbursement of expenses so long as the party who is seeking
indemnification, advances or reimbursement did not commit willful misconduct or
a knowing violation of criminal law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
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4.1 Amended and Restated Articles of
Incorporation of the Company (incorporated by
reference to Exhibit No. 3.2 to the Company's
Registration Statement on Form S-1 (File No.
33-85854)).
4.2 Amended and Restated By-Laws of the Company
(incorporated by reference to Exhibit No. 3.4
to the Company's Registration Statement on
Form S-1 (File No. 33-85854)).
4.3 Specimen of Common Stock Certificate of the
Company (incorporated by reference toExhibit
No. 4.3 to the Company's Registration
Statement on Form S-8 (File No. 33-97302)).
4.4 BTG, Inc. 1995 Employee Stock Option Plan, as
amended.
4.5 BTG, Inc. Directors Stock Option Plan
(incorporated by reference to Exhibit No.
10.10 to the Company's Annual Report on Form
10-K for the year ended March 31, 1996).
4.6 BTG, Inc. Amended and Restated Employee Stock
Purchase Plan.
5 Opinion of Hogan & Hartson L.L.P. regarding
the legality of the securities being
registered.
23.1 Consent of Hogan & Hartson L.L.P. (included
in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (included on the signature
pages hereof).
<PAGE> 5
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:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of
the 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 the registration
statement;
(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.
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on
Form S-3, or Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any
liability under the Securities 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 that 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 Securities 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 deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liability arising under the Securities
Act 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 Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant or expenses incurred or
paid by a director, officer or controlling person in 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
<PAGE> 6
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned 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 County of Fairfax, Virginia, on August 20,
1996.
BTG, INC.
By: /S/ Edward H. Bersoff
Edward H. Bersoff
President, Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
Know all men by these presents, that each individual whose
signature appears below constitutes and appoints Edward H. Bersoff, John M.
Hughes and Deborah Fox, and each of them, his or her true and lawful
attorney-in-fact and agent, with power of substitution and resubstitution, for
him or her and in his or her name, place and stead, in any and all capacities,
to sign a registration statement (the "Registration Statement") relating to a
registration of shares of common stock on Form S-8 and to sign any and all
amendments (including post-effective amendments) to the Registration Statement,
and to file the same, with all exhibits and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, 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 to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their, his or her substitutes
or substitute, may lawfully 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 in the
capacities indicated as of the 20th day of August, 1996:
<TABLE>
<S> <C>
/s/ EDWARD H. BERSOFF President, Chief Executive Officer and Chairman of the Board
- -----------------------------------------------
Edward H. Bersoff
/s/ JOHN M. HUGHES Vice President and Chief Financial Officer (principal financial
- ----------------------------------------------- officer & principal accounting officer)
John M. Hughes
/s/ RUTH M. DAVIS Director
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Ruth M. Davis
/s/ JAMES V. KIMSEY Director
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James V. Kimsey
</TABLE>
<PAGE> 8
<TABLE>
<S> <C>
/s/ ALAN G. MERTEN Director
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Alan G. Merten
/s/ RAYMOND TATE Director
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Raymond Tate
/s/ RONALD L. TURNER Director
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Ronald L. Turner
/s/ DONALD M. WALLACH Director
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Donald M. Wallach
</TABLE>
<PAGE> 1
EXHIBIT 4.4
BTG, INC.
1995 EMPLOYEE STOCK OPTION PLAN
BTG, INC., a Virginia corporation (the "Corporation"), sets
forth herein the terms of the 1995 Employee Stock Option Plan (the "Plan") as
follows:
1. PURPOSE
The Plan is intended to advance the interests of the
Corporation by providing eligible individuals (as designated pursuant to
Section 4 hereof) an opportunity to acquire or increase a proprietary interest
in the Corporation, which thereby will create a stronger incentive to expend
maximum effort for the growth and success of the Corporation and its
subsidiaries and will encourage such eligible individuals to remain in the
employ of the Corporation or that of one or more of its subsidiaries. Each
stock option granted under the Plan (an "Option") is intended to be an
"incentive stock option" ("Incentive Stock Option") within the meaning of
Section 422 of the Internal Revenue Code of 1986, or the corresponding
provision of any subsequently enacted tax statute, as amended from time to time
(the "Code"), except (a) to the extent that any such Option would exceed the
limitations set forth in Section 7 hereof and (b) for Options specifically
designated at the time of grant as not being "incentive stock options."
2. ADMINISTRATION
2.1. BOARD
The Plan shall be administered by the board of directors of
the Corporation (the "Board"), which shall have the full power and authority to
take all actions and to make all determinations required or provided for under
the Plan or any Option granted or Option Agreement (as defined in Section 8
hereof) entered into hereunder and all such other actions and determinations
not inconsistent with the specific terms and provisions of the Plan deemed by
the Board to be necessary or appropriate to the administration of the Plan or
any Option granted or Option Agreement entered into hereunder. The
interpretation and construction by the Board of any provision of the Plan or of
any Option granted or Option Agreement entered into hereunder shall be final
and conclusive.
2.2. COMMITTEE
The Board may from time to time appoint a Stock Option
Committee (the "Committee") which may, in the discretion of the Board, be the
Organization and Compensation Committee of the Board. The Board, in its sole
discretion, may provide that the role of the Committee shall be limited to
making recommendations to the Board concerning any determinations to be made
and actions to be taken by the Board pursuant to or with respect to the Plan,
or the Board may delegate to the Committee such powers and authorities related
to the administration of the Plan, as set forth in Section 2.1 hereof, as the
Board shall determine, consistent with the Amended and Restated Articles of
Incorporation (the "Articles") and Amended and Restated Bylaws (the "Bylaws")
of the Corporation and applicable law. In the event that the Plan or any
Option granted or Option Agreement entered into hereunder provides for any
action to be taken by or determination to be made by the Board, such action may
be taken by or such determination may be made by the Committee if the power and
authority to do so has been delegated to the Committee by the Board as provided
for in this Section 2.2. Unless otherwise expressly determined by the Board,
any such action or determination by the Committee shall be final and
conclusive.
<PAGE> 2
2.3. NO LIABILITY
No member of the Board or of the Committee shall be liable for
any action or determination made, or any failure to take or make an action or
determination, in good faith with respect to the Plan or any Option granted or
Option Agreement entered into hereunder.
2.4. ACTION BY THE BOARD
The Board may act under the Plan with respect to any Option
granted to or Option Agreement entered into with an officer or stockholder of
the Corporation who is subject to Section 16 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), other than by, or in accordance with the
recommendations of, the Committee, constituted as set forth in Section 2.2
hereof, only if all of the members of the Board are "disinterested persons" as
defined in Rule 16b-3 of the Exchange Act and "outside directors" for purposes
of Section 162(m) of the Code.
3. STOCK
The stock that may be issued pursuant to Options granted under
the Plan shall be shares of Common Stock of the Corporation (the "Stock"),
which shares may be treasury shares or authorized but unissued shares. The
number of shares of Stock that may be issued pursuant to Options granted under
the Plan shall not exceed in the aggregate 250,000 shares of Stock, which
number of shares is subject to adjustment as provided in Section 19 hereof. If
any Option expires, terminates or is terminated for any reason prior to
exercise in full, the shares of Stock that were subject to the unexercised
portion of such Option shall be available for future Options granted under the
Plan.
4. ELIGIBILITY
Options may be granted under the Plan to any employee of the
Corporation or any "subsidiary corporation" thereof within the meaning of
Section 424(f) of the Code (a "Subsidiary") (including any such employee who is
an officer or director of the Corporation or any Subsidiary) as the Board shall
determine and designate from time to time prior to expiration or termination of
the Plan. An individual may hold more than one Option, subject to such
restrictions as are provided herein.
5. EFFECTIVE DATE AND TERM
5.1. EFFECTIVE DATE
The Plan shall become effective as of the date of adoption by
the Board, subject to stockholders' approval of the Plan within one year of
such effective date by a majority of the votes cast at a duly held meeting of
the stockholders of the Corporation at which a quorum representing a majority
of all outstanding stock is present, either in person or by proxy, and voting
on the matter, or by written consent in accordance with applicable state law
and the Articles and Bylaws of the Corporation and in a manner that satisfies
the requirements of Rule 16b-3(b) of the Exchange Act; provided, however, that
upon approval of the Plan by the stockholders of the Corporation, all Options
granted under the Plan on or after the effective date shall be fully effective
as if the stockholders of the Corporation had approved the Plan on the
effective date. If the stockholders fail to approve the Plan within one year
of such effective date, any Options granted hereunder shall be null, void and
of no effect.
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<PAGE> 3
5.2. TERM
The Plan shall terminate on the date 10 years after the
effective date.
6. GRANT OF OPTIONS
Subject to the terms and conditions of the Plan, the Board
may, at any time and from time to time prior to the date of termination of the
Plan, grant to such eligible individuals as the Board may determine
("Optionees") Options to purchase such number of shares of the Stock on such
terms and conditions as the Board may determine, including any terms or
conditions which may be necessary to qualify such Options as "incentive stock
options" under Section 422 of the Code. Without limiting the foregoing, the
Board may at any time, with the consent of the Optionee, amend the terms of
outstanding Options or issue new Options in exchange for the surrender and
cancellation of outstanding Options. The date on which the Board approves the
grant of an Option (or such later date as is specified by the Board) shall be
considered the date on which such Option is granted. The maximum shares of
Stock subject to Options that can be awarded under the Plan to any executive
officer of the Company or a Subsidiary, or to any other person eligible for a
grant under the Plan, is 50% of the shares of Stock authorized to be issued
under the Plan.
7. LIMITATION ON INCENTIVE STOCK OPTIONS
An Option (other than an Option described in Section 1(b)
hereof) shall constitute an Incentive Stock Option only to the extent that the
aggregate fair market value (determined at the time the Option is granted) of
the Stock with respect to which Incentive Stock Options are exercisable for the
first time by any Optionee during any calendar year (under the Plan and all
other plans of the Optionee's employer corporation and its parent and
subsidiary corporations within the meaning of Section 422(d) of the Code) does
not exceed $100,000. This limitation shall be applied by taking Options into
account in the order in which such Options were granted.
8. OPTION AGREEMENTS
All Options granted pursuant to the Plan shall be evidenced by
written agreements ("Option Agreements") to be executed by the Corporation and
the Optionee, in such form or forms as the Board shall from time to time
determine. Option Agreements covering Options granted from time to time or at
the same time need not contain similar provisions; provided, however, that all
such Option Agreements shall comply with all terms of the Plan.
9. OPTION PRICE
The purchase price of each share of the Stock subject to an
Option (the "Option Price") shall be fixed by the Board and stated in each
Option Agreement. In the case of an Option that is intended to constitute an
Incentive Stock Option, the Option Price shall be not less than 100 percent of
the fair market value of a share of the Stock covered by the Option on the date
the Option is granted (as determined in good faith by the Board); provided,
however, that in the event the Optionee would otherwise be ineligible to
receive an Incentive Stock Option by reason of the provisions of Sections
422(b)(6) and 424(d) of the Code (relating to stock ownership of more than 10
percent), the Option Price of an Option which is intended to be an Incentive
Stock Option shall be not less than 110 percent of the fair market value of a
share of the Stock covered by the Option at the time such Option is granted.
In the event that the Stock is listed on an established national or regional
stock exchange, is admitted to quotation on the National Association of
Securities Dealers Automated Quotation System, or is publicly traded in an
- 3 -
<PAGE> 4
established securities market, in determining the fair market value of the
Stock, the Board shall use the closing price of the Stock on such exchange or
system or in such market (the highest such closing price if there is more than
one such exchange or market) on the date the Option is granted (or, if there is
no such closing price, then the Board shall use the mean between the highest
bid and lowest asked prices or between the high and low prices on such date),
or, if no sale of the Stock has been made on such day, on the next preceding
day on which any such sale shall have been made. In the case of an Option not
intended to constitute an Incentive Stock Option, the Option Price shall be not
less than the book value of the Stock covered by the Option.
10. TERM AND EXERCISE OF OPTIONS
10.1. TERM
Each Option granted under the Plan shall terminate and all
rights to purchase shares thereunder shall cease upon the expiration of 10
years from the date such Option is granted, or on such date prior thereto as
may be fixed by the Board and stated in the Option Agreement relating to such
Option; provided, however, that in the event the Optionee would otherwise be
ineligible to receive an Incentive Stock Option by reason of the provisions of
Sections 422(b)(6) and 424(d) of the Code (relating to stock ownership of more
than 10 percent), an Option granted to such Optionee which is intended to be an
Incentive Stock Option shall in no event be exercisable after the expiration of
five years from the date it is granted.
10.2. EXERCISE BY OPTIONEE
Only the Optionee receiving an Option (or, in the event of the
Optionee's legal incapacity or incompetency, the Optionee's guardian or legal
representative, and in the case of the Optionee's death, the Optionee's estate)
may exercise the Option.
10.3. OPTION PERIOD AND LIMITATIONS ON EXERCISE
Each Option granted under the Plan shall be exercisable in
whole or in part at any time and from time to time over a period commencing on
or after the date of grant of the Option and ending upon the expiration or
termination of the Option, as the Board shall determine and set forth in the
Option Agreement relating to such Option. Without limitation of the foregoing,
the Board, subject to the terms and conditions of the Plan, may in its sole
discretion provide that an Option may not be exercised in whole or in part for
any period or periods of time during which such Option is outstanding as the
Board shall determine and set forth in the Option Agreement relating to such
Option. Any such limitation on the exercise of an Option contained in any
Option Agreement may be rescinded, modified or waived by the Board, in its sole
discretion, at any time and from time to time after the date of grant of such
Option, so as to accelerate the time at which the Option may be exercised.
Notwithstanding any other provisions of the Plan, no Option shall be
exercisable in whole or in part prior to the date the Plan is approved by the
stockholders of the Corporation as provided in Section 5.1 hereof.
10.4. METHOD OF EXERCISE
An Option that is exercisable hereunder may be exercised by
delivery to the Corporation on any business day, at its principal office
addressed to the attention of the Board, of written notice of exercise, which
notice shall specify the number of shares for which the Option is being
exercised, and shall be accompanied by payment in full of the Option Price of
the shares for which the Option is being exercised. Payment of the Option
Price for the shares of Stock purchased pursuant to the exercise of an Option
shall be made, as determined by the Board and set forth in the Option Agreement
pertaining to an
- 4 -
<PAGE> 5
Option, (a) in cash or by certified check payable to the order of the
Corporation; (b) through the tender to the Corporation of shares of Stock,
which shares shall be valued, for purposes of determining the extent to which
the Option Price has been paid thereby, at their fair market value (determined
in the manner described in Section 9 hereof ) ("Fair Market Value") on the date
of exercise; (c) by authorizing the Company to withhold whole shares then
issuable upon exercise of the Option (with any such shares valued at their Fair
Market Value) or (d) by a combination of the methods described in Sections
10.4(a), 10.4(b) and 10.4(c) hereof; provided, however, that the Board may in
its discretion impose and set forth in the Option Agreement pertaining to an
Option such limitations or prohibitions on the use of shares of Stock to
exercise Options as it deems appropriate. Payment in full of the Option Price
need not accompany the written notice of exercise provided the notice directs
that the Stock certificate or certificates for the shares for which the Option
is exercised be delivered to a licensed broker acceptable to the Corporation as
the agent for the individual exercising the Option and, at the time such Stock
certificate or certificates are delivered, the broker tenders to the
Corporation cash (or cash equivalents acceptable to the Corporation) equal to
the Option Price. An attempt to exercise any Option granted hereunder other
than as set forth above shall be invalid and of no force and effect. Promptly
after the exercise of an Option and the payment in full of the Option Price of
the shares of Stock covered thereby, the individual exercising the Option shall
be entitled to the issuance of a Stock certificate or certificates evidencing
such individual's ownership of such shares. A separate Stock certificate or
certificates shall be issued for any shares purchased pursuant to the exercise
of an Option which is an Incentive Stock Option, which certificate or
certificates shall not include any shares which were purchased pursuant to the
exercise of an Option which is not an Incentive Stock Option. An individual
holding or exercising an Option shall have none of the rights of a stockholder
until the shares of Stock covered thereby are fully paid and issued to such
individual and, except as provided in Section 19 hereof, no adjustment shall be
made for dividends or other rights for which the record date is prior to the
date of such issuance.
11. TRANSFERABILITY OF OPTIONS
No Option shall be assignable or transferable by the Optionee
to whom it is granted, other than by will or the laws of descent and
distribution.
12. TRANSFERABILITY OF STOCK
12.1. OFFER TO THE CORPORATION
In the Board's sole discretion, the Board may provide in an
Option Agreement that an Optionee (or any other person who is entitled to
exercise an Option pursuant to the terms of the Plan) (the "Transferor") shall
not sell, pledge, assign, give, transfer or otherwise dispose of any Stock
acquired pursuant to an Option without first offering such Stock to the
Corporation for purchase on the same terms and conditions as those offered to
the proposed transferee. The Corporation may assign its right of first
refusal, in whole or in part, to (a) any stockholder of the Corporation (a
"Stockholder"), (b) any employee benefit plan (within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended)
maintained by the Corporation for the benefit of employees of the Corporation
(a "Benefit Plan") or (c) any corporation or other trade or business that is
controlled by or under common control with the Corporation (determined in
accordance with the principles of Sections 414(b) and 414(c) of the Code and
the regulations thereunder) (an "Affiliate"). The Corporation shall give
reasonable written notice to the Transferor of any such assignment of its
rights.
12.2. REPURCHASE RIGHTS
In the Board's sole discretion, the Board may provide in an
Option Agreement that upon the termination of employment with the Corporation
of an employee who has been granted one or more
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<PAGE> 6
Option(s) hereunder, the Corporation shall have the right, for a period of six
months following such termination, to repurchase any or all of the shares of
Stock acquired by the employee pursuant to such Option(s), at a price equal to
the fair market value of such shares on the date of termination (or at such
lower price as shall have been specified by the Board and set forth in the
applicable Option Agreement(s)). In the event that the Corporation determines
that it cannot or will not exercise its right to purchase Stock pursuant to
this Section 12.2, in whole or in part, the Corporation may assign its rights
hereunder, in whole or in part, to a Stockholder, a Benefit Plan or an
Affiliate. The Corporation shall give reasonable written notice to the
employee of any assignment of its rights. "Fair market value," for purposes of
this Section 12.2, shall be determined by the Board in the same manner
specified for determining the Option Price pursuant to Section 9 hereof.
12.3. PUBLICLY TRADED STOCK
The restrictions of this Section 12 shall terminate as of the
first day that the Stock is listed on an established national or regional stock
exchange or is admitted to quotation on the National Association of Securities
Dealers Automated Quotation System, or is publicly traded in an established
securities market.
12.4. INSTALLMENT PAYMENTS
In the case of any purchase of Stock under this Section 12, at
the option of the Corporation or its permitted assignee, the Corporation or its
permitted assignee may pay the Optionee or other registered owner of the Stock
the purchase price in two or fewer annual installments. Interest shall be
credited on the installments at the applicable federal rate (as determined for
purposes of Section 1274 of the Code) in effect on the date on which the
purchase is made. The Corporation or its permitted assignee shall pay at least
one-half of the total purchase price each year, plus interest on the unpaid
balance, with the first payment being made on or before the 60th day after the
purchase.
12.5. LEGEND DESCRIBING RESTRICTIONS AND OBLIGATIONS
In order to enforce the restrictions on transferability
imposed upon shares of Stock under the Plan or as provided in the Option
Agreement, the Board shall cause a legend or legends to be placed prominently
on certificates representing Stock issued pursuant to the Plan that complies
with the applicable securities laws and regulations and makes appropriate
references to the restrictions imposed under the Plan.
13. TERMINATION OF EMPLOYMENT
Upon the termination of the employment of an Optionee with the
Corporation or a Subsidiary, other than by reason of the death or "permanent
and total disability" (within the meaning of Section 22(e) (3) of the Code) of
such Optionee, any Option granted to an Optionee pursuant to the Plan shall
continue to be exercisable only to the extent that it was exercisable
immediately before such termination; provided, however, such Option shall
terminate three months after the date of such termination of employment, unless
earlier terminated pursuant to Section 10.1 hereof, and such Optionee shall
have no further right to purchase shares of Stock pursuant to such Option; and
provided further, that the Board may provide, by inclusion of appropriate
language in any Option Agreement, that an Optionee may (subject to the general
limitations on exercise set forth in Section 10.3 hereof), in the event of
termination of employment of the Optionee with the Corporation or a Subsidiary,
exercise an Option, in whole or in part, at any time subsequent to such
termination of employment and prior to termination of the Option pursuant to
Section 10.2 hereof, either subject to or without regard to any installment
limitation on exercise imposed pursuant to Section 10.3 hereof, as the Board,
in its sole and absolute discretion, shall
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<PAGE> 7
determine and set forth in the Option Agreement. Whether a leave of absence or
leave on military or government service shall constitute a termination of
employment for purposes of the Plan shall be determined by the Board, which
determination shall be final and conclusive. For purposes of the Plan, a
termination of employment with the Corporation or a Subsidiary shall not be
deemed to occur if the Optionee is immediately thereafter employed with the
Corporation or any other Subsidiary.
14. RIGHTS IN THE EVENT OF DEATH OR DISABILITY
14.1. DEATH
If an Optionee dies while employed by the Corporation or a
Subsidiary or within the period following the termination of employment during
which the Option is exercisable under Section 13 or 14.2 hereof, the executors,
administrators, legatees or distributees of such Optionee's estate shall have
the right (subject to the general limitations on exercise set forth in Section
10.3 hereof), at any time within one year after the date of such Optionee's
death and prior to termination of the Option pursuant to Section 10.1 hereof,
to exercise any Option held by such Optionee at the date of such Optionee's
death, to the extent such Option was exercisable immediately prior to such
Optionee's death; provided, however, that the Board may provide by inclusion of
appropriate language in any Option Agreement that, in the event of the death of
an Optionee, the executors, administrators, legatees or distributees of such
Optionee's estate may exercise an Option (subject to the general limitations on
exercise set forth in Section 10.3 hereof), in whole or in part, at any time
subsequent to such Optionee's death and prior to termination of the Option
pursuant to Section 10.1 hereof, either subject to or without regard to any
installment limitation on exercise imposed pursuant to Section 10.3 hereof, as
the Board, in its sole and absolute discretion, shall determine and set forth
in the Option Agreement.
14.2. DISABILITY
If an Optionee terminates employment with the Corporation or a
Subsidiary by reason of the "permanent and total disability" (within the
meaning of Section 22(e) (3) of the Code) of such Optionee, then such Optionee
shall have the right (subject to the general limitations on exercise set forth
in Section 10.3 hereof), at any time within one year after such termination of
employment and prior to termination of the Option pursuant to Section 10.1
hereof, to exercise, in whole or in part, any Option held by such Optionee at
the date of such termination of employment, to the extent such Option was
exercisable immediately prior to such termination of employment; provided,
however, that the Board may provide, by inclusion of appropriate language in
any Option Agreement, that an Optionee may (subject to the general limitations
on exercise set forth in Section 10.3 hereof), in the event of the termination
of employment of the Optionee with the Corporation or a Subsidiary by reason of
the "permanent and total disability" (within the meaning of Section 22(e)(3) of
the Code) of such Optionee, exercise an Option, in whole or in part, at any
time subsequent to such termination of employment and prior to termination of
the Option pursuant to Section 10.1 hereof, either subject to or without regard
to any installment limitation on exercise imposed pursuant to Section 10.3
hereof, as the Board, in its sole and absolute discretion, shall determine and
set forth in the Option Agreement. Whether a termination of employment is to
be considered by reason of "permanent and total disability" for purposes of the
Plan shall be determined by the Board, which determination shall be final and
conclusive.
15. USE OF PROCEEDS
The proceeds received by the Corporation from the sale of
Stock pursuant to Options granted under the Plan shall constitute general funds
of the Corporation.
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<PAGE> 8
16. SECURITIES LAWS
The Corporation shall not be required to sell or issue any
shares of Stock under any Option if the sale or issuance of such shares would
constitute a violation by the individual exercising the Option or by the
Corporation of any provisions of any law or regulation of any governmental
authority, including, without limitation, any federal or state securities laws
or regulations. If at any time the Corporation shall determine, in its
discretion, that the listing, registration or qualification of any shares
subject to the Option upon any securities exchange or under any state or
federal law, or the consent of any government regulatory body, is necessary or
desirable as a condition of, or in connection with, the issuance or purchase of
shares, the Option may not be exercised in whole or in part unless such
listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Corporation,
and any delay caused thereby shall in no way affect the date of termination of
the Option. Specifically in connection with the Securities Act of 1933, as
amended (the "Securities Act"), upon exercise of any Option, unless a
registration statement under the Securities Act is in effect with respect to
the shares of Stock covered by such Option, the Corporation shall not be
required to sell or issue such shares unless the Corporation has received
evidence satisfactory to the Corporation that the Optionee may acquire such
shares pursuant to an exemption from registration under the Securities Act.
Any determination in this connection by the Corporation shall be final and
conclusive. The Corporation may, but shall in no event be obligated to,
register any securities covered hereby pursuant to the Securities Act. The
Corporation shall not be obligated to take any affirmative action in order to
cause the exercise of an Option or the issuance of shares pursuant thereto to
comply with any law or regulation of any governmental authority. As to any
jurisdiction that expressly imposes the requirement that an Option shall not be
exercisable unless and until the shares of Stock covered by such Option are
registered or are subject to an available exemption from registration, the
exercise of such Option (under circumstances in which the laws of such
jurisdiction apply) shall be deemed conditioned upon the effectiveness of such
registration or the availability of such an exemption.
17. EXCHANGE ACT: RULE 16B-3
17.1. GENERAL
The Plan is intended to comply with Rule 16b-3 ("Rule 16b-3")
under the Exchange Act from and after the date on which the Corporation first
registers a class of equity securities under Section 12 of the Exchange Act
(the "Registration Date"). From and after the Registration Date, any provision
inconsistent with Rule 16b-3 (as in effect on the Registration Date) shall, to
the extent permitted by law and determined to be advisable by the Committee
(constituted in accordance with Section 17.2 hereof) or the Board (acting
pursuant to Section 17.3 hereof), be inoperative and void. In addition, from
and after the Registration Date, the provisions set forth in Sections 17.2
through 17.5 shall apply.
17.2. STOCK OPTION COMMITTEE
From and after the Registration Date, the Committee appointed
pursuant to Section 2.2 hereof shall consist of not fewer than two members of
the Board, neither of whom, during the period of service on such Committee and
the year prior to service on such Committee, shall have been granted an Option
under the Plan or been granted or awarded an option or other security under any
plan of the Corporation other than as permitted under Rule 16b-3(c)(2)(i) and
each of whom shall qualify (at the time of appointment to the Committee and
during all periods of service on the Committee) in all respects as a
"disinterested person" as defined in Rule 16b-3.
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<PAGE> 9
17.3. ACTION BY THE BOARD
From and after the Registration Date, the Board may act under
the Plan other than by, or in accordance with the recommendations of, the
Committee, constituted as set forth in Section 17.2 hereof, only if all members
of the Board are "disinterested persons" as defined in Rule 16b-3.
17.4. ADDITIONAL RESTRICTION ON TRANSFER OF STOCK
From and after the Registration Date, no director, officer or
other "insider" of the Corporation subject to Section 16 of the Exchange Act
shall be permitted to sell Stock (which such "insider" had received upon
exercise of an Option) during the six months immediately following the grant of
such Option.
17.5. ADDITIONAL REQUIREMENT OF STOCKHOLDERS' APPROVAL
From and after the Registration Date, no amendment by the
Board shall, without approval by a majority of the votes cast at a duly held
meeting of the stockholders of the Corporation at which a quorum representing a
majority of all outstanding stock is present, either in person or by proxy, and
voting on the amendment, or by written consent in accordance with applicable
state law and the Certificate of Incorporation and Bylaws of the Corporation,
materially increase the benefits accruing to Section 16 "insiders" under the
Plan or take any other action that would require the approval of such
stockholders pursuant to Rule 16b-3.
18. AMENDMENT AND TERMINATION
The Board may, at any time and from time to time, amend,
suspend or terminate the Plan as to any shares of Stock as to which Options
have not been granted; provided, however, that no amendment by the Board shall,
without approval by a majority of the votes cast at a duly held meeting of the
stockholders of the Corporation at which a quorum representing a majority of
all outstanding stock is present, either in person or by proxy, and voting on
the amendment, or by written consent in accordance with applicable state law
and the Articles and Bylaws of the Corporation, materially change the
requirements as to eligibility to receive Options or increase the maximum
number of shares of Stock in the aggregate that may be sold pursuant to Options
granted under the Plan (except as permitted under Section 19 hereof). The
Corporation also may retain the right in an Option Agreement to cause a
forfeiture of the shares or gain realized by an Optionee on account of the
Optionee taking actions in "competition with the Corporation," as defined in
the applicable Option Agreement. Furthermore, the Corporation may, in the
Option Agreement, retain the right to annul the grant of an Option if the
holder of such grant was an employee of the Corporation or a Subsidiary and is
terminated "for cause," as defined in the applicable Option Agreement. Except
as permitted under Section 19 hereof, no amendment, suspension or termination
of the Plan shall, without the consent of the Optionee, alter or impair rights
or obligations under any Option theretofore granted under the Plan.
19. EFFECT OF CHANGES IN CAPITALIZATION
19.1 CHANGES IN STOCK
If the number of outstanding shares of Stock is increased or
decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Corporation by reason of any recapitalization,
reclassification, stock split-up, combination of shares, exchange of shares,
stock dividend or other distribution payable in capital stock, or other
increase or decrease in such shares effected without
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<PAGE> 10
receipt of consideration by the Corporation, occurring after the effective date
of the Plan, a proportionate and appropriate adjustment shall be made by the
Corporation in the number and kind of shares for which Options are outstanding,
so that the proportionate interest of the Optionee immediately following such
event shall, to the extent practicable, be the same as immediately prior to
such event. Any such adjustment in outstanding Options shall not change the
aggregate Option Price payable with respect to shares subject to the
unexercised portion of the Option outstanding but shall include a corresponding
proportionate adjustment in the Option Price per share.
19.2. REORGANIZATION WITH CORPORATION SURVIVING
Subject to Section 19.3 hereof, if the Corporation shall be
the surviving corporation in any reorganization, merger or consolidation of the
Corporation with one or more other corporations, any Option theretofore granted
pursuant to the Plan shall pertain to and apply to the securities to which a
holder of the number of shares of Stock subject to such Option would have been
entitled immediately following such reorganization, merger or consolidation,
with a corresponding proportionate adjustment of the Option Price per share so
that the aggregate Option Price thereafter shall be the same as the aggregate
Option Price of the shares remaining subject to the Option immediately prior to
such reorganization, merger or consolidation.
19.3. OTHER REORGANIZATIONS; SALE OF ASSETS OR STOCK
Upon the dissolution or liquidation of the Corporation, or
upon a merger, consolidation or reorganization of the Corporation with one or
more other corporations in which the Corporation is not the surviving
corporation, or upon a sale of substantially all of the assets of the
Corporation to another corporation, or upon any transaction (including, without
limitation, a merger or reorganization in which the Corporation is the
surviving corporation) approved by the Board that results in any person or
entity (other than persons who are holders of stock of the Corporation at the
time the Plan is approved by the Stockholders and other than an Affiliate)
owning 80 percent or more of the combined voting power of all classes of stock
of the Corporation, the Plan and all Options outstanding hereunder shall
terminate, except to the extent provision is made in connection with such
transaction for the continuation of the Plan and/or the assumption of the
Options theretofore granted, or for the substitution for such Options of new
options covering the stock of a successor corporation, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kinds of
shares and exercise prices, in which event the Plan and Options theretofore
granted shall continue in the manner and under the terms so provided. In the
event of any such termination of the Plan, each Optionee shall have the right
(subject to the general limitations on exercise set forth in Section 10.3
hereof and except as otherwise specifically provided in the Option Agreement
relating to such Option), immediately prior to the occurrence of such
termination and during such period occurring prior to such termination as the
Board in its sole discretion shall designate, to exercise such Option in whole
or in part, whether or not such Option was otherwise exercisable at the time
such termination occurs, but subject to any additional limitations that the
Board may, in its sole discretion, include in any Option Agreement. The Board
shall send written notice of an event that will result in such a termination to
all Optionees not later than the time at which the Corporation gives notice
thereof to its stockholders.
19.4. ADJUSTMENTS
Adjustments under this Section 19 relating to stock or
securities of the Corporation shall be made by the Board, whose determination
in that respect shall be final and conclusive. No fractional shares of Stock
or units of other securities shall be issued pursuant to any such adjustment,
and any fractions resulting from any such adjustment shall be eliminated in
each case by rounding downward to the nearest whole share or unit.
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<PAGE> 11
19.5. NO LIMITATIONS ON CORPORATION
The grant of an Option pursuant to the Plan shall not affect
or limit in any way the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge, consolidate, dissolve or liquidate, or to sell or
transfer all or any part of its business or assets.
20. WITHHOLDING
The Corporation shall have the right to withhold, or require
an Optionee to remit to the Corporation, an amount sufficient to satisfy any
applicable federal, state or local withholding tax requirements imposed with
respect to exercise of Options. To the extent permissible under applicable
tax, securities and other laws, the Optionee may satisfy a tax withholding
requirement by directing the Corporation to apply shares of Stock to which the
Optionee is entitled as a result of the exercise of an Option to satisfy
withholding requirements under this Section 20.
21. DISCLAIMER OF RIGHTS
No provision in the Plan or in any Option granted or Option
Agreement entered into pursuant to the Plan shall be construed to confer upon
any individual the right to remain in the employ of the Corporation or any
Subsidiary, or to interfere in any way with the right and authority of the
Corporation or any Subsidiary either to increase or decrease the compensation
of any individual at any time, or to terminate any employment or other
relationship between any individual and the Corporation or any Subsidiary. The
obligation of the Corporation to pay any benefits pursuant to the Plan shall be
interpreted as a contractual obligation to pay only those amounts described
herein, in the manner and under the conditions prescribed herein. The Plan
shall in no way be interpreted to require the Corporation to transfer any
amounts to a third party trustee or otherwise hold any amounts in trust or
escrow for payment to any participant or beneficiary under the terms of the
Plan.
22. NONEXCLUSIVITY
Neither the adoption of the Plan nor the submission of the
Plan to the stockholders of the Corporation for approval shall be construed as
creating any limitations upon the right and authority of the Board to adopt
such other incentive compensation arrangements (which arrangements may be
applicable either generally to a class or classes of individuals or
specifically to a particular individual or individuals) as the Board in its
discretion determines desirable, including, without limitation, the granting of
stock options otherwise than under the Plan.
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<PAGE> 12
The Plan was duly adopted and approved by the Board on October
17, 1994 and was duly approved by the stockholders of the Corporation on
November 23, 1994.
/S/ Marilynn D. Bersoff
--------------------------------------
Marilynn D. Bersoff
Secretary
The Plan was amended by unanimous consent of the Board of Directors of BTG,
Inc. on the 26th of June, 1996 increasing the number of shares authorized to be
issued pursuant to options granted under the Plan from 250,000 to 750,000. The
amendment to the Plan was duly approved by the shareholders of BTG, Inc. on the
14th of August, 1996
/S/ Marilynn D. Bersoff
-------------------------------
Marilynn D. Bersoff
Secretary of BTG, Inc.
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<PAGE> 1
EXHIBIT 4.6
AMENDED AND RESTATED
EMPLOYEE STOCK PURCHASE PLAN
OF
BTG, INC.
WHEREAS, the BTG, Inc. Employee Stock Purchase Plan (the
"Plan") has been duly adopted by the Board of Directors of BTG, Inc. (the
"Company") on May 26, 1995 and by the shareholders of the Company on August 30,
1995 to enable eligible employees of the Company and its participating
affiliates (as defined below), through Payroll deductions, to purchase shares
of the Company's common stock (the "Common Stock") and thus to benefit the
Company by increasing the employees' interest in the Company's growth and
success and encouraging eligible employees to remain in the employ of the
Company or its participating affiliates; and
WHEREAS, the Board of Directors has approved certain
amendments to the Plan subject to shareholder approval, to be effective as of
the commencement of the first Payroll Deduction Period (as defined below)
following such shareholder approval, and has authorized restatement of the Plan
to reflect such amendments, as set forth below;
NOW, THEREFORE, the provisions of the Plan, as amended and
restated, are set forth below:
1. SHARES SUBJECT TO THE PLAN. Subject to adjustment as provided
in Section 21 below, the aggregate number of shares of Common Stock that will
be made available for purchase by participants under the Plan is 400,000. The
shares issuable under the Plan may, in the discretion of the Board of Directors
of the Company (the "Board"), be either authorized but unissued shares or
treasury shares. To the extent there shall be any adjustment pursuant to the
provisions of Section 21 hereof, the aforesaid number of shares shall be
appropriately adjusted.
2. ADMINISTRATION. The Plan shall be administered under the
direction of the Employee Stock Purchase Plan Committee (the "Committee"),
consisting of at least two members of the Board, none of whom shall be an
employee of the Company or its affiliates or otherwise eligible to participate
in the Plan. Members of the Committee shall be appointed, and may be removed,
by the affirmative vote of the majority of the entire Board. No member of the
Board or the Committee shall be liable for any action or determination made in
good faith with respect to the Plan.
3. INTERPRETATION. It is intended that the Plan meet the
requirements for an "employee stock purchase plan" under Section 423 of the
Internal Revenue Code of 1986 (the "Code") and is to be so applied and
interpreted. Subject to the express provisions of the Plan, the Committee
shall have authority to interpret the Plan, to prescribe, amend and rescind
rules relating to it, and to make all other determinations necessary or
advisable in administering the Plan, all of which determinations will be final
and binding upon all persons.
4. ELIGIBLE EMPLOYEES. Any employee of the Company or any of its
participating affiliates may participate in the Plan, except the following, who
are ineligible to participate: (a) an employee whose customary employment is
for less than five months in any calendar year; (b) an employee whose customary
employment is 20 hours or less per week; and (c) an employee who, after
exercising his or her rights to purchase shares under the Plan, would own
shares of Common Stock (including shares that may be acquired under any
outstanding options) representing five percent or more of the total combined
voting power of all classes of stock of the Company. The term "participating
affiliate" means any direct or indirect affiliate of the Company that is
designated as such by a resolution of the Board. The Board may at any
<PAGE> 2
time in its sole discretion, if it deems it advisable to do so, terminate the
participation of the employees of a particular affiliate or affiliates.
5. PARTICIPATION IN THE PLAN. An eligible employee may become a
participant in the Plan by completing an election to participate in the Plan on
a form provided by the Company and submitting that form to the Human Resources
Department of the Company. The form will (a) authorize payroll deductions and
state the amount of eligible compensation (as defined in Section 6 below) to be
deducted from the employee's pay, (b) indicate any additional amount to be
contributed as provided in Section 8 below, and (c) authorize the purchase of
shares of Common Stock for the employee's account in accordance with the terms
of the Plan. Enrollment will become effective upon the first day of the first
Payroll Deduction Period (as defined in Section 7 below) that commences after
the Company's receipt of the form, but not before July 1, 1995.
6. PAYROLL DEDUCTIONS. At the time an eligible employee submits
his or her election to participate in the Plan (as provided in Section 5
above), the employee shall elect to have deductions made from his or her pay,
on each pay day following his or her enrollment in the Plan, and for as long as
he or she shall participate in the Plan, of a whole dollar amount of eligible
compensation which the employee is entitled to receive on such pay day. For
purposes of this Plan, "eligible compensation" includes salary and overtime
pay. Deductions made in accordance herewith will be credited to the employee's
account under the Plan. A participating employee may at any time increase or
decrease his or her payroll deduction amount by completing and submitting to
the Human Resources Department of the Company a new payroll deduction
authorization form to take effect at the beginning of the next Payroll
Deduction Period (as defined in Section 7 below). An employee may not during
any Payroll Deduction Period change his or her payroll deduction for that
Payroll Deduction Period, nor may an employee withdraw any contributed funds
other than by terminating participation in accordance with Section 15 below.
7. PAYROLL DEDUCTION PERIODS. The first Payroll Deduction Period
under the Plan shall commence on October 1, 1995 and shall end on December 31,
1995 (the "Initial Payroll Deduction Period"). Subsequent Payroll Deduction
Periods will be three-month periods beginning on January 1, April 1, July 1 and
October 1 of each year.
8. LUMP SUM CONTRIBUTIONS. For the Payroll Deduction Period
commencing on July 1 of each year, an eligible employee may contribute a lump
sum amount for purchase of Common Stock under the Plan in addition to payroll
deductions provided for in Section 6 above.
9. RIGHTS TO PURCHASE COMMON STOCK; PURCHASE PRICE. Rights to
purchase shares of Common Stock will be deemed granted to participating
employees as of the first trading day of each Payroll Deduction Period. The
purchase price of each share of Common Stock (the "Purchase Price") will be the
lesser of 85 percent of the fair market value of the Common Stock (i) on the
first trading day of the Payroll Deduction Period or (ii) on the last trading
day of such Payroll Deduction Period. For purposes of the Plan, "fair market
value" means, if the Common Stock is listed on an established national or
regional stock exchange, is admitted to quotation on the National Association
of Securities Dealers Automated Quotation System, or is publicly traded in an
established securities market, the closing price of the Common Stock on such
exchange or system or in such market (the highest such closing price if there
is more than one such exchange or market) on such date (or, if there is no such
closing price, the mean between the highest bid and lowest asked prices or
between the high and low prices on such date), or, if no sale of the Common
Stock has been made on such day, or the next preceding day on which any such
sale shall have been made.
10. TIMING OF PURCHASE; PURCHASE LIMITATION. Unless a
participating employee has given prior written notice terminating such
employee's participation in the Plan, or his or her participation in the Plan
has otherwise been terminated as provided in Section 15 below, such employee
will be deemed to have exercised automatically his or her right to purchase
Common Stock on the last trading day of the Payroll Deduction Period (except as
provided in Section 15 below) for the number of whole shares of
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<PAGE> 3
Common Stock which the accumulated funds in the employee's account at that time
will purchase at the Purchase Price, subject to the purchase limitation set
forth below in this Section 10 and subject to adjustment under Section 21
below. Shares may not be purchased at any other time under the Plan.
Fractional shares will not be issued under the Plan. Notwithstanding any other
provision of the Plan, no employee may purchase in any one calendar year under
the Plan and all other "employee stock purchase plans" of the Company and its
subsidiaries (as such term is defined in Section 423 of the Code) shares of
Common Stock having an aggregate fair market value in excess of $25,000,
determined, as to shares purchased during each Payroll Deduction Period during
such calendar year, as of the first trading date of such Payroll Deduction
Period. Any funds remaining in a participating employee's account after a
purchase of shares will be returned to the participating employee, except that
any such amount that is attributable to a fractional share shall be retained in
the account and will be available for the purchase of additional shares during
the next Payroll Deduction Period. Effective upon the last trading day of the
Payroll Deduction Period, a participating employee will become a stockholder
with respect to the shares purchased during such Period, and will thereupon
have all dividend, voting and other ownership rights incident thereto, subject
to the transfer restriction provided in Section 11 below.
11. ISSUANCE OF STOCK CERTIFICATES; TRANSFER RESTRICTIONS. On the
last trading day of the Payroll Deduction Period, a participating employee will
be credited with the number of whole shares of Common Stock purchased for his
or her account under the Plan during such Period. Shares purchased under the
Plan will be held in the custody of the Committee, or such other entity as the
Committee shall designate, as agent (the "Agent"). The Agent may hold the
shares purchased under the Plan in stock certificates in nominee names, and may
commingle shares held in its custody in a single account or stock certificate,
without identification as to individual employees. An employee may, at any
time after the expiration of six months following his or her purchase of shares
under the Plan, by written notice instruct the Agent to have all or part of
such shares reissued in the employee's own name and have the stock certificate
delivered to the employee. During such six months period, the employee will
not be entitled to sell or otherwise transfer the shares.
12. WITHHOLDING OF TAXES. To the extent that a participant
realizes ordinary income in connection with a sale or other transfer of any
shares of Common Stock purchased under the Plan, the Company, or its affiliate,
may withhold amounts needed to cover such taxes from any payments otherwise due
and owing to the participant or from shares that would otherwise be issued to
the participant hereunder. Any participant who sells or otherwise transfers
shares purchased under the Plan within two years after the beginning of the
Payroll Deduction Period in which the shares were purchased must within 30 days
of such transfer notify the Human Resources Department of the Company in
writing of such transfer.
13. ACCOUNT STATEMENTS. The Company will cause the Agent to
deliver to each participating employee a statement for each Payroll Deduction
Period during which the employee purchases Common Stock under the Plan,
reflecting the amount of Payroll deductions accumulated during the Payroll
Deduction Period, the number of shares purchased for the employee's account,
the price per share of the shares purchased for the employee's account, the
number of shares held for the employee's account at the end of the Payroll
Deduction Period, and any amount attributable to a fractional share that is
being carried over to the next Payroll Deduction Period.
14. PARTICIPATION ADJUSTMENT. If in any Payroll Deduction Period
the number of unsold shares that may be made available for purchase under the
Plan pursuant to Section 1 above is insufficient to permit exercise of all
rights deemed exercised by all participating employees pursuant to Section 10
above, a participation adjustment will be made, and the number of shares
purchasable by all participating employees will be reduced proportionately.
Any funds then remaining in a participating employee's account after such
exercise will be refunded to the employee.
15. TERMINATION OF PARTICIPATION. A participating employee will
be refunded all monies in his or her account, and his or her participation in
the Plan will be terminated, if: (a) the employee elects to
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<PAGE> 4
terminate participation in a writing delivered to the Payroll Department of the
Company provided, that, with respect to a participating employee who is an
executive officer of the Company who is subject to Section 16(b) under the
Securities Exchange Act of 1934, as amended, such employee's termination of
participation in the Plan shall be deemed to be effective as of the first day
of the next Payroll Deduction Period following the Payroll Deduction Period
during which such employee delivers a writing terminating such employee's
participation in the Plan; (b) the employee ceases to be employed by the
Company or a participating affiliate; (c) the Board elects to terminate the
Plan as provided in Section 20 below; or (d) the employee ceases to be eligible
to participate in the Plan under Section 4 above. Temporary disability or an
approved leave of absence will not result in termination of employment within
the meaning of the Plan. As soon as practicable following termination of an
employee's participation in the Plan, the Company will deliver to the employee
a check representing any uninvested contributions to which the employee is
entitled and a stock certificate representing the number of whole shares held
in the employee's account; provided, that the employee shall not be entitled to
have a stock certificate delivered as to any shares held for less than six
months from the date of purchase until such six month holding period has been
satisfied. Once terminated, participation may not be reinstated for the then
current Payroll Deduction Period, but, if otherwise eligible, the employee may
elect to participate in any subsequent Payroll Deduction Period.
16. ASSIGNMENT. No participating employee may assign his or her
rights to purchase shares of Common Stock under the Plan, whether voluntarily,
by operation of law or otherwise. Any payment of cash or issuance of shares of
Common Stock under the Plan may be made only to the participating employee (or,
in the event of the employee's death, to the employee's estate). Once a stock
certificate has been issued to the employee or for his or her account, such
certificate may be assigned the same as any other stock certificate.
17. APPLICATION OF FUNDS. All funds received or held by the
Company under the Plan may be used for any corporate purpose until applied to
the purchase of Common Stock and/or refunded to participating employees.
Participating employees' accounts will not be segregated. Interest will not be
paid on funds held by the Company pursuant to the Plan.
18. NO RIGHT TO CONTINUED EMPLOYMENT. Neither the Plan nor any
right to purchase Common Stock under the Plan confers upon any employee any
right to continued employment with the Company or any of its affiliates, nor
will an employee's participation in the Plan restrict or interfere in any way
with the right of the Company or any of its affiliates to terminate the
employee's employment at any time.
19. AMENDMENT OF PLAN. The Board may amend the Plan in any
respect; provided, however, that without approval of the stockholders of the
Company no amendment shall be made: (a) increasing the number of shares
specified in Section 1 above that may be made available for purchase under the
Plan (except as provided in Section 21 below), (b) changing the eligibility
requirements for participating in the Plan or (c) which adversely affects any
right or obligation with respect to any right to purchase shares of Common
Stock pursuant to the Plan then outstanding, except to the extent that any such
action shall be required or desirable (in the opinion of the Company or its
counsel) in order to comply with the provisions of the Code or any rule or
regulation promulgated or proposed thereunder.
20. EFFECTIVE DATE; TERM AND TERMINATION OF THE PLAN. The Plan
was effective on May 26, 1995 and was approved by a majority of the votes
present and entitled to vote at a duly held meeting of the shareholders of the
Company on August 30, 1995 at which a quorum, representing a majority of all
outstanding voting stock, was present. Amendments to the Plan incorporated in
this restatement are to be effective as of the commencement of the first
Payroll Deduction Period following approval of such amendments by the
shareholders of the Company as set forth above. The Board may terminate the
Plan at any time and for any reason or for no reason, provided that such
termination shall not impair any rights of participants that have vested at the
time of termination. In any event, the Plan shall, without further action of
the Board, terminate at the earlier of (i) the fifth anniversary of the
effective date of the Plan and (ii) such time as all shares of Common Stock
that may be made available for purchase under the Plan
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<PAGE> 5
pursuant to Section 1 above have been issued; provided, that Section 11 above
shall remain in full force and effect for a period of at least six months
following the date of termination of the Plan, after which all shares of Common
Stock held by the Agent pursuant to the terms of Section 11 above shall be
reissued in the names of the employees entitled to such shares, and stock
certificates evidencing such shares shall be delivered to such employees.
21. EFFECT OF CHANGES IN CAPITALIZATION.
(a) Changes in Stock.
If the number of outstanding shares of Common Stock is
increased or decreased or the shares of Common Stock are changed into or
exchanged for a different number or kind of shares or other securities of the
Company on account of any recapitalization, reclassification, stock split,
reverse split, combination of shares, exchange of shares, stock dividend or
other distribution payable in capital stock, or other increase or decrease in
such shares effected without receipt of consideration by the Company occurring
after the effective date of the Plan, the number and kinds of shares of Common
Stock that may be purchased under the Plan shall be adjusted proportionately
and accordingly by the Company. In addition, the number and kind of shares for
which rights are outstanding shall be adjusted proportionately and accordingly
so that the proportionate interest of a participating employee immediately
following such event shall, to the extent practicable, be the same as
immediately before such event. Any such adjustment in outstanding rights shall
not change the aggregate Purchase Price payable by a participating employee
with respect to shares subject to such rights, but shall include a
corresponding proportionate adjustment in the Purchase Price per share.
(b) Reorganization in Which the Company Is the Surviving
Corporation.
Subject to Subsection (c) of this Section 21, if the Company
shall be the surviving corporation in any reorganization, merger or
consolidation of the Company with one or more other corporations, all
outstanding rights under the Plan shall pertain to and apply to the securities
to which a holder of the number of shares of Common Stock subject to such
rights would have been entitled immediately following such reorganization,
merger or consolidation, with a corresponding proportionate adjustment of the
Purchase Price per share so that the aggregate Purchase Price thereafter shall
be the same as the aggregate Purchase Price of the shares subject to such
rights immediately prior to such reorganization, merger or consolidation.
(c) Reorganization in Which the Company Is Not the
Surviving Corporation or Sale of Assets or Stock.
Upon any dissolution or liquidation of the Company, or upon a
merger, consolidation or reorganization of the Company with one or more other
corporations in which the Company is not the surviving corporation, or upon a
sale of all or substantially all of the assets of the Company to another
corporation, or upon any transaction that results in any person or entity (or
persons or entities acting as a group or otherwise in concert) owning more than
50 percent of the combined voting power of all classes of stock of the Company,
the Plan and all rights outstanding hereunder shall terminate, except to the
extent provision is made in writing in connection with such transaction for the
continuation of the Plan or the assumption of the rights theretofore granted,
or for the substitution for such rights of new rights covering the stock of a
successor corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kinds of shares and exercise prices, in which
event the Plan and rights theretofore granted shall continue in the manner and
under the terms so provided. In the event of any such termination of the Plan,
the Payroll Deduction Period shall be deemed to have ended on the last trading
day prior to such termination, and in accordance with Section 10 above the
rights of each participating employee then outstanding shall be deemed to be
automatically exercised on such last trading day; provided, that in the event
of such termination of the Plan, the Company or such successor corporation
shall take such action as may be necessary to ensure that the Agent appointed
pursuant to the terms of Section 11 above shall continue to hold shares of
Common Stock in custody as required by Section 11 above for a period of at
least six months following the date of termination of the Plan, after which all
shares of Common Stock held by the Agent pursuant to the terms of Section 11
above shall be reissued in
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<PAGE> 6
the names of the employees entitled to such shares, and stock certificates
evidencing such shares shall be delivered to such employees. The Board shall
send written notice of an event that will result in such a termination to all
participating employees not later than the time at which the Company gives
notice thereof to its stockholders.
(d) Adjustments.
Adjustments under this Section 21 related to stock or
securities of the Company shall be made by the Committee, whose determination
in that respect shall be final, binding, and conclusive. No fractional shares
of Common Stock or units of other securities shall be issued pursuant to any
such adjustment, and any fractions resulting from any such adjustment shall be
eliminated in each case by rounding downward to the nearest whole share or
unit.
(e) No Limitations on Company.
The grant of a right pursuant to the Plan shall not affect or
limit in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge, consolidate, dissolve or liquidate, or to sell or
transfer all or any part of its business or assets.
22. GOVERNMENTAL REGULATION. The Company's obligation to issue,
sell and deliver shares of Common Stock pursuant to the Plan is subject to such
approval of any governmental authority and any national securities exchange or
other market quotation system as may be required in connection with the
authorization, issuance or sale of such shares.
23. STOCKHOLDER RIGHTS. Any dividends paid on shares held by the
Company for a participating employee's account will be transmitted to the
employee. The Company will deliver to each participant who purchases shares of
Common Stock under the Plan, as promptly as practicable by mail or otherwise,
all notices of meetings, proxy statements, proxies and other materials
distributed by the Company to its stockholders. Any shares of Common Stock
held by the Agent for an employee's account will be voted in accordance with
the employee's duly delivered and signed proxy instructions. There will be no
charge to participating employees in connection with such notices, proxies and
other materials.
24. PAYMENT OF PLAN EXPENSES. The Company will bear all costs of
administering and carrying out the Plan; provided, that, except as otherwise
specifically provided in the Plan, the Company shall not be obligated to pay
any costs or expenses (including legal fees) incurred by any participant in the
Plan in connection with any right to purchase shares of Common Stock hereunder
or the purchase of such shares of Common Stock.
* * *
The Amended and Restated Employee Stock Purchase Plan of BTG, Inc. was
duly adopted and approved by the Board of Directors of BTG, Inc. on the 26th of
June, 1996.
/s/ Marilynn D. Bersoff
-----------------------
Marilynn D. Bersoff
Secretary of BTG, Inc.
The Amended and Restated Employee Stock Purchase Plan of BTG, Inc. was
duly approved by the shareholders of BTG, Inc. on the14th of August, 1996.
/s/ Marilynn D. Bersoff
-----------------------
Marilynn D. Bersoff
Secretary of BTG, Inc.
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<PAGE> 1
EXHIBIT 5
August 20, 1996
Board of Directors
BTG, Inc.
1945 Old Gallows Road
Vienna, VA 22182
Ladies and Gentlemen:
This firm has acted as counsel to BTG, Inc., a Virginia
corporation (the "Company"), in connection with its registration, pursuant to
its Registration Statement on Form S-8 filed on the date hereof (the
"Registration Statement"), of 850,000 shares (the "Shares") of common stock, no
par value per share, of the Company (the "Common Stock"), issuable (i) upon the
exercise of options granted or to be granted pursuant to the Company's 1995
Employee Stock Option Plan (the "Option Plan") and the Company's Directors
Stock Option Plan (the "Directors Plan"), and (ii) pursuant to the Company's
Amended and Restated Employee Stock Purchase Plan (the "Purchase Plan" and,
together with the Option Plan and Directors Plan, the "Plans"). This opinion
letter is furnished to you at your request to enable you to fulfill the
requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section
229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. An executed copy of the Registration Statement.
2. The Amended and Restated Articles of Incorporation of
the Company, as certified by the Virginia State
Corporation Commission on August 15, 1996 and by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
3. The Amended and Restated By-laws of the Company, as
certified by the Secretary of the Company on the date
hereof as then being complete, accurate and in effect.
<PAGE> 2
Board of Directors
BTG, Inc.
August 20, 1996
Page 2
4. Each of the Plans as adopted by the Board of Directors
of the Company and approved by the stockholders of the
Company, and as certified by the Secretary of the
Company on the date hereof as then being complete,
accurate and in effect.
5. Resolutions of the Board of Directors of the Company
adopted at meetings held on October 17, 1994, May 26,
1995, August 30, 1995 and June 26, 1996, as certified
by the Secretary of the Company on the date hereof as
then being complete, accurate and in effect, relating
to, among other things, the approval of the Plans and
the filing of the Registration Statement.
6. Resolutions of the stockholders of the Company adopted
at meetings held on November 23, 1994, August 30, 1995
and August 14, 1996, as certified by the Secretary of
the Company on the date hereof as then being complete,
accurate and in effect, relating to, among other
things, the approval of the Plans.
In our examination of the aforesaid certificates, records and
documents, we have assumed the genuineness of all signatures, the legal
capacity of all natural persons, the accuracy and completeness of all documents
submitted to us, the authenticity of all original documents and the conformity
to authentic original documents of all documents submitted to us as copies
(including telecopies). This opinion letter is given, and all statements
herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on
the Virginia Stock Corporation Act. We express no opinion herein as to any
other laws, statutes, regulations or ordinances.
Based upon, subject to and limited by the foregoing, we are of
the opinion that following (i) issuance of the Shares in the manner and on the
terms contemplated in the Plans and (ii) receipt by the Company of the
consideration for the Shares as contemplated by the terms of the Plans, the
Shares will be validly issued, fully paid and non-assessable under the Virginia
Stock Corporation Act.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion
letter has been
<PAGE> 3
Board of Directors
BTG, Inc.
August 20, 1996
Page 3
prepared solely for your use in connection with filing of the Registration
Statement on the date hereof, and should not be quoted in whole or in part or
otherwise be referred to, nor be filed with or furnished to any governmental
agency or other person or entity, without the prior written consent of this
firm.
We hereby consent to the filing of this opinion letter as an
exhibit to the Registration Statement. In giving this consent, we do not
thereby admit that we are an "expert" within the meaning of the Securities Act
of 1933, as amended.
Sincerely yours,
/S/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors and Shareholders
BTG, Inc.
We consent to the use of our reports incorporated by reference herein dated May
10, 1996, relating to the consolidated balance sheets of BTG, Inc. and
subsidiaries as of March 31, 1996 and 1995, and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of the
years in the three-year period ended March 31, 1996, and related schedule,
which reports appear in the March 31, 1996 annual report on Form 10-K of BTG,
Inc. and subsidiaries.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
McLean, Virginia
August 19, 1996
