Exhibit
10.1


 


FORM OF


 


INDEMNIFICATION
AGREEMENT


 


This Indemnification
Agreement (the “Agreement”) is made as of                       ,
by and between SM&A, a Delaware corporation (the “Company”), and                                      
(the “Indemnitee”).


 


RECITALS


A.                                    The
Company and Indemnitee recognize the increasing difficulty in obtaining
liability insurance for directors, officers and key employees, the significant
increases in the cost of such insurance and the general reductions in the
coverage of such insurance.


 


B.                                    The
Company and Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers and key employees to
expensive litigation risks at the same time as the availability and coverage of
liability insurance has been severely limited.


 


C.                                    Indemnitee
does not regard the current protection available as adequate under the present
circumstances, and Indemnitee and agents of the Company may not be willing to
continue to serve as agents of the Company without additional protection.


 


D.                                    The
Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, and to indemnify its directors, officers and
key employees so as to provide them with the maximum protection permitted by
law.


 


AGREEMENT


In consideration of the
mutual promises made in this Agreement, and for other good and valuable
consideration, receipt of which is hereby acknowledged, the Company and
Indemnitee hereby agree as follows:


 


1.                                       Indemnification.


 


(a)                                  Third
Party Proceedings.  The Company shall
indemnify Indemnitee if Indemnitee is or was a party or is threatened to be
made a party to any threatened, pending or completed action, suit, proceeding,
or investigation whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Company) by reason of the fact
that Indemnitee is or was a director, officer, employee or agent of the
Company, or any subsidiary of the Company, by reason of any action or inaction on
the part of Indemnitee while an officer or director or by reason of the fact
that Indemnitee is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement (if such settlement is approved
in advance by the Company, which approval shall not be unreasonably withheld)
actually and reasonably incurred by Indemnitee in connection with such action,
suit or proceeding if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe Indemnitee’s conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that Indemnitee did not act in good faith and in a manner
which Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, or, with respect to any criminal action or
proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s
conduct was unlawful.


 

















 


(b)                                 Proceedings
By or in the Right of the Company. 
The Company shall indemnify Indemnitee if Indemnitee was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or proceeding by or in the right of the Company or any subsidiary of the
Company to procure a judgment in its favor by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of the Company, or
any subsidiary of the Company, by reason of any action or inaction on the part
of Indemnitee while an officer or director or by reason of the fact that
Indemnitee is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys’ fees) and, to
the fullest extent permitted by law, amounts paid in settlement (if such
settlement is approved in advance by the Company, which approval shall not be
unreasonably withheld), in each case to the extent actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of such
action or suit if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company and its stockholders, except that no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall have been
finally adjudicated by court order or judgment to be liable to the Company in
the performance of Indemnitee’s duty to the Company and its stockholders unless
and only to the extent that the court in which such action or proceeding is or
was pending shall determine upon application that, in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.


 


(c)                                  Mandatory
Payment of Expenses.  To the extent
that Indemnitee has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Section 1(a) or Section 1(b) or
the defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against expenses (including attorneys’ fees) actually and
reasonably incurred by Indemnitee in connection therewith.


 


(d)                                 Exceptions.  Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:


 


                                                (i)                                     Claims
Initiated by Indemnitee.  To indemnify or
advance expenses to Indemnitee with respect to proceedings or claims initiated
or brought voluntarily by Indemnitee and not by way of defense, except with
respect to proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or law or otherwise
as required under Section 145 of the Delaware General Corporation Law, but
such indemnification or advancement of expenses may be provided by the Company
in specific cases if the Board finds it to be appropriate; or


 


                                                (ii)                                  Claims
under Section 16(b).  To indemnify
Indemnitee for expenses or the payment of profits arising from the purchase and
sale by Indemnitee of securities in violation of Section 16(b) of the
Securities and Exchange Act of 1934, as amended, or any similar successor
statute.


 


2.                                       No
Employment Rights.  Nothing contained
in this Agreement is intended to create in Indemnitee any right to continued
employment.


 


3.                                       Expenses;
Indemnification Procedure.


 


(a)                                  Advancement
of Expenses.  The Company shall
advance all expenses incurred by Indemnitee in connection with the
investigation, defense, settlement or appeal of any civil or criminal action,
suit or proceeding referred to in Section 1(a) or Section 1(b) hereof
(including amounts actually paid in settlement of any such action, suit or
proceeding). Indemnitee hereby undertakes to repay such amounts advanced only
if, and to the extent that, it shall ultimately be determined that Indemnitee
is not entitled to be indemnified by the Company as authorized hereby.


 

















 


(b)                                 Notice/Cooperation
by Indemnitee.  Indemnitee shall, as
a condition precedent to his or her right to be indemnified under this
Agreement, give the Company notice in writing as soon as practicable of any
claim made against Indemnitee for which indemnification will or could be sought
under this Agreement. Notice to the Company shall be directed to the President
or the Chief Executive Officer of the Company and shall be given in accordance
with the provisions of Section 11(d) below. In addition, Indemnitee
shall give the Company such information and cooperation as it may reasonably
require and as shall be within Indemnitee’s power.


 


(c)                                  Procedure.  Any indemnification and advances provided for
in Section 1 and this Section 3 shall be made no later than thirty
(30) days after receipt of the written request of Indemnitee. If a claim under
this Agreement, under any statute, or under any provision of the Company’s
Certificate of Incorporation or Bylaws providing for indemnification, is not
paid in full by the Company within thirty (30) days after a written request for
payment thereof has first been received by the Company, Indemnitee may, but
need not, at any time thereafter bring an action against the Company to recover
the unpaid amount of the claim and, subject to Section 10 of this Agreement,
Indemnitee shall also be entitled to be paid for the expenses (including
attorneys’ fees) of bringing such action. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred
in connection with any action, suit or proceeding in advance of its final
disposition) that Indemnitee has not met the standards of conduct which make it
permissible under applicable law for the Company to indemnify Indemnitee for
the amount claimed, but the burden of proving such defense shall be on the
Company and Indemnitee shall be entitled to receive interim payments of
expenses pursuant to Section 3(a) unless and until such defense may
be finally adjudicated by court order or judgment from which no further right
of appeal exists. It is the parties’ intention that if the Company contests
Indemnitee’s right to indemnification, the question of Indemnitee’s right to
indemnification shall be for the court to decide, and neither the failure of
the Company (including its Board of Directors, any committee or subgroup of the
Board of Directors, independent legal counsel, or its stockholders) to have
made a determination that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of conduct
required by applicable law, nor an actual determination by the Company
(including its Board of Directors, any committee or subgroup of the Board of
Directors, independent legal counsel, or its stockholders) that Indemnitee has
not met such applicable standard of conduct, shall create a presumption that
Indemnitee has or has not met the applicable standard of conduct.


 


(d)                                 Notice
to Insurers.  If, at the time of the
receipt of a notice of a claim pursuant to Section 3(b) hereof, the
Company has director and officer liability insurance in effect, the Company
shall give prompt notice of the commencement of such proceeding to the insurers
in accordance with the procedures set forth in the respective policies. The
Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result
of such proceeding in accordance with the terms of such policies.


 


(e)                                  Selection
of Counsel.  In the event the Company
shall be obligated under Section 3(a) hereof to pay the expenses of
any proceeding against Indemnitee, the Company, if appropriate, shall be
entitled to assume the defense of such proceeding, with counsel approved by
Indemnitee, upon the delivery to Indemnitee of written notice of its election
so to do. After delivery of such notice, approval of such counsel by Indemnitee
and the retention of such counsel by the Company, the Company will not be
liable to Indemnitee under this Agreement for any fees of counsel subsequently
incurred by Indemnitee with respect to the same proceeding, provided that (i) Indemnitee
shall have the right to employ counsel in any such proceeding at Indemnitee’s
expense; and (ii) if (A) the employment of counsel by Indemnitee has
been previously authorized by the Company, (B) Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Company and Indemnitee in the conduct of any such defense or (C) the
Company shall not, in fact, have employed counsel to assume the defense of such
proceeding, then the fees and expenses of Indemnitee’s counsel shall be at the
expense of the Company.


 

















 


4.                                       Additional
Indemnification Rights; Nonexclusivity.


 


(a)                                  Scope.  Notwithstanding any other provision of this
Agreement, the Company hereby agrees to indemnify the Indemnitee to the fullest
extent permitted by law, notwithstanding that such indemnification is not
specifically authorized by the other provisions of this Agreement, the Company’s
Certificate of Incorporation, the Company’s Bylaws or by statute. In the event
of any change, after the date of this Agreement, in any applicable law,
statute, or rule which expands the right of a Delaware corporation to
indemnify a member of its board of directors or an officer, such changes shall
be deemed to be within the purview of Indemnitee’s rights and the Company’s
obligations under this Agreement. In the event of any change in any applicable
law, statute or rule which narrows the right of a Delaware corporation to
indemnify a member of its board of directors or an officer, such changes, to
the extent not otherwise required by such law, statute or rule to be
applied to this Agreement shall have no effect on this Agreement or the parties’
rights and obligations hereunder.


 


(b)                                 Nonexclusivity.  The indemnification provided by this
Agreement shall not be deemed exclusive of any rights to which Indemnitee may
be entitled under the Company’s Certificate of Incorporation, its Bylaws, any
agreement, any vote of stockholders or disinterested members of the Company’s
Board of Directors, the General Corporation Law of the State of Delaware, or
otherwise, both as to action in Indemnitee’s official capacity and as to action
in another capacity while holding such office. The indemnification provided
under this Agreement shall continue as to Indemnitee for any action taken or
not taken while serving in an indemnified capacity even though he or she may
have ceased to serve in any such capacity at the time of any action, suit or
other covered proceeding.


 


5.                                       Partial
Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the
expenses, judgments, fines or penalties actually or reasonably incurred in the
investigation, defense, appeal or settlement of any civil or criminal action,
suit or proceeding, but not, however, for the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion of such expenses,
judgments, fines or penalties to which Indemnitee is entitled.


 


6.                                       Mutual
Acknowledgment.  Both the Company and
Indemnitee acknowledge that in certain instances, Federal law or public policy
may override applicable state law and prohibit the Company from indemnifying
its directors and officers under this Agreement or otherwise.  For example, the Company and Indemnitee
acknowledge that the Securities and Exchange Commission (the “SEC”) has
taken the position that indemnification is not permissible for liabilities
arising under certain federal securities laws, and federal legislation
prohibits indemnification for certain 
ERISA violations.


 

















 


7.                                       Officer
and Director Liability Insurance. 
The Board shall, from time to time, make the good faith determination
whether or not it is practicable for the Company to obtain and maintain a
policy or policies of insurance with reputable insurance companies providing
the officers and directors of the Company with coverage for losses from
wrongful acts, or to ensure the Company’s performance of its indemnification
obligations under this Agreement. Among other considerations, the Board will
weigh the costs of obtaining such insurance coverage against the protection
afforded by such coverage. In all policies of director and officer liability
insurance, Indemnitee shall be named as an insured in such a manner as to
provide Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company’s directors, if Indemnitee is a director; or
of the Company’s officers, if Indemnitee is not a director of the Company but
is an officer; or of the Company’s key employees, if Indemnitee is not an
officer or director but is a key employee. Notwithstanding the foregoing, the
Company shall have no obligation to obtain or maintain such insurance if the
Board determines in good faith that such insurance is not reasonably available,
if the premium costs for such insurance are disproportionate to the amount of
coverage provided, if the coverage provided by such insurance is limited by
exclusions so as to provide an insufficient benefit, or if Indemnitee is
covered by similar insurance maintained by a parent or subsidiary of the
Company.


 


8.                                       Severability.  Nothing in this Agreement is intended to
require or shall be construed as requiring the Company to do or fail to do any
act in violation of applicable law. The Company’s inability, pursuant to court
order, to perform its obligations under this Agreement shall not constitute a
breach of this Agreement. The provisions of this Agreement shall be severable
as provided in this Section 8. If this Agreement or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Company shall nevertheless indemnify Indemnitee to the full extent
permitted by any applicable portion of this Agreement that shall not have been
invalidated, and the balance of this Agreement not so invalidated shall be
enforceable in accordance with its terms.


 


9.                                       Construction
of Certain Phrases.


 


(a)                        For
purposes of this Agreement, references to the “Company” shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that if
Indemnitee is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, Indemnitee shall stand
in the same position under the provisions of this Agreement with respect to the
resulting or surviving corporation as Indemnitee would have with respect to
such constituent corporation if its separate existence had continued.


 


(b)                       For
purposes of this Agreement, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes
assessed on Indemnitee with respect to an employee benefit plan; and references
to “serving at the request of the Company” shall include any service as a
director, officer, employee or agent of the Company which imposes duties on, or
involves services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants, or beneficiaries; and if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan,
Indemnitee shall be deemed to have acted in a manner “not opposed to the best
interests of the Company” as referred to in this Agreement.


 

















 


10.                                 Attorneys’
Fees.  In the event that any action
is instituted by Indemnitee under this Agreement to enforce or interpret any of
the terms hereof, Indemnitee shall be entitled to be paid all court costs and
expenses, including reasonable attorneys’ fees, incurred by Indemnitee with
respect to such action, unless as a part of such action, the court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
as a basis for such action were not made in good faith or were frivolous.  In the event of an action instituted by or in
the name of the Company under this Agreement or to enforce or interpret any of
the terms of this Agreement, Indemnitee shall be entitled to be paid all court
costs and expenses, including attorneys’ fees, incurred by Indemnitee in
defense of such action (including with respect to Indemnitee’s counterclaims
and cross-claims made in such action), unless as a part of such action the
court determines that each of Indemnitee’s material defenses to such action
were made in bad faith or were frivolous.


 


11.                                 Miscellaneous.


 


(a)                                  Governing
Law.  This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of Delaware, without giving effect to principles of conflicts of
law.


 


(b)                                 Entire
Agreement; Enforcement of Rights. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter
herein and merges all prior discussions between them. No modification of or
amendment to this Agreement, nor any waiver of any rights under this Agreement,
shall be effective unless in writing signed by the parties to this Agreement.
The failure by either party to enforce any rights under this Agreement shall
not be construed as a waiver of any rights of such party.


 


(c)                                  Construction.  This Agreement is the result of negotiations
between and has been reviewed by each of the parties hereto and their
respective counsel, if any; accordingly, this Agreement shall be deemed to be
the product of all of the parties hereto, and no ambiguity shall be construed
in favor of or against any one of the parties hereto.


 


(d)                                 Notices.  Any notice, demand or request required or
permitted to be given under this Agreement shall be in writing and shall be
deemed sufficient when delivered personally or sent by fax or 48 hours after
being sent by nationally-recognized courier or deposited in the U.S. mail, as
certified or registered mail, with postage prepaid, and addressed to the party
to be notified at such party’s address or fax number as set forth below or as
subsequently modified by written notice.


 


(e)                                  Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.


 


(f)                                    Successors
and Assigns.  This Agreement shall be
binding upon the Company and its successors and assigns, and inure to the
benefit of Indemnitee and Indemnitee’s heirs, legal representatives and
assigns.


 


(g)                                 Subrogation.
In the event of payment under this Agreement, the Company shall be subrogated
to the extent of such payment to all of the rights of recovery of Indemnitee,
who shall execute all documents required and shall do all acts that may be
necessary to secure such rights and to enable the Company to effectively bring
suit to enforce such rights.


 

















 


The parties hereto have
executed this Agreement as of the day and year set forth on the first page of
this Agreement.


 


	
  SM&A, a Delaware
  corporation

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  4695 MacArthur Court, 8th
  Floor

  Newport Beach, CA 92660

  	
   

  
	
   

  
	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AGREED TO AND ACCEPTED:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Telephone: