<PAGE>
As filed with the Securities and Exchange Commission
on February 28, 1997
Registration No. 333_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BANYAN SYSTEMS INCORPORATED
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2798394
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
120 FLANDERS ROAD, WESTBORO, MASSACHUSETTS 01581
(Address of Principal Executive Offices) (Zip Code)
NON-QUALIFIED STOCK OPTION
COMMON STOCK AWARD
(Full title of the plan)
MARK G. BORDEN, ESQ.
HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(Name and address of agent for service)
(617) 526-6000
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
========================================================================================
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
- ---------------- ---------- --------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock 1,200,000 shares $3.65625(1) $4,387,500(1) $1,330
$.01 par value
- ----------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low prices of the Common Stock on
the Nasdaq National Market on February 24, 1997 in accordance with Rules
457(c) and 457(h) of the Securities Act of 1933.
========================================================================================
</TABLE>
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in
documents sent or given to the recipient of the Non-Qualified Stock Option and
Common Stock Award from Banyan Systems Incorporated (the "Registrant") pursuant
to Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities
Act"). The information required by Part I of Form S-3 relating to the 200,000
restricted securities registered hereunder for resale pursuant to General
Instruction C of Form S-8 is included in the Reoffer Prospectus filed together
with this Registration Statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and in accordance therewith files reports,
proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are filed with the
Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to Sections
13(a) or 15(d) of the Exchange Act, or the latest prospectus filed pursuant to
Rule 424(b) under the Securities Act that contains audited financial statements
for the Registrant's latest fiscal year for which such statements have been
filed.
(2) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the annual reports
or the prospectus referred to in (1) above.
(3) The description of the common stock of the Registrant, $.01 par
value per share (the "Common Stock"), contained in a Registration Statement
filed under Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of
a post-effective
II-2
<PAGE>
amendment which indicates that all shares of Common Stock offered hereby have
been sold or which deregisters all shares of Common Stock then remaining unsold,
shall be deemed to be incorporated by reference herein and to be part hereof
from the date of the filing of such documents.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
Item 6. Indemnification
---------------
Section 67 of Chapter 156B of the Massachusetts General Laws
("Section 67") provides that a corporation may indemnify its directors and
officers to the extent specified in or authorized by (i) the articles of
organization, (ii) a by-law adopted by the stockholders, or (iii) a vote adopted
by the holders of a majority of the shares of stock entitled to vote on the
election of directors. In all instances, the extent to which a corporation
provides indemnification to its directors and officers under Section 67 is
optional. In its Second Amended and Restated Articles of Organization the
Registrant has elected to commit to provide indemnification to its directors and
officers in specified circumstances. Generally, Article 6 of the Registrant's
Second Amended and Restated Articles of Organization indemnifies directors and
officers of the Registrant against liabilities and expenses arising out of legal
proceedings brought against them by reason of their status or service as
directors or officers or by reason of their agreeing to serve, at the request of
the Registrant, as a director or officer of, or in a similar capacity with,
another organization or in any capacity with respect to any employee benefit
plan of the Registrant. Under this provision, a director or officer of the
Registrant shall be indemnified by the Registrant for all expenses, judgments,
fines and amounts paid in settlement of such proceedings, even if he or she is
not successful on the merits, if he or she acted in good faith and in a manner
he or she reasonably believed to be in the best interests of the Registrant.
The Registrant's Second Amended and Restated Articles of
Organization establish the presumption that the director or officer has met the
applicable standard of conduct required for indemnification. The indemnification
above shall be made unless the Registrant determines, by clear and convincing
evidence, that the applicable standard of conduct has not been met. Such a
determination may be made by a majority of a quorum of the directors,
independent legal counsel, the stockholders, or a court of competent
jurisdiction. The Board of Directors shall
II-3
<PAGE>
authorize advancing litigation expenses to a director or officer at his request
upon receipt of an undertaking by such director or officer to repay such
expenses if it is ultimately determined that he or she is not entitled to
indemnification for such expenses.
The Registrant's Second Amended and Restated Articles of
Organization also provide that, in the event of a determination by the
Registrant that a director or officer did not meet the standard of conduct
required for indemnification, or if the Registrant fails to make an
indemnification payment or an advance of expenses within 60 days after such
payment is claimed by a director or officer, such director or officer may
petition a court to make an independent determination of whether such director
or officer is entitled to indemnification. The Registrant's Second Amended and
Restated Articles of Organization explicitly provide for partial indemnification
of costs and expenses in the event that a director of officer is not entitled to
full indemnification.
Article 6 of the Registrant's Second Amended and Restated Articles
of Organization also eliminates the personal liability of the Registrant's
directors to the Registrant or its stockholders for monetary damages for breach
of a director's fiduciary duty, except to the extent Chapter 156B of the
Massachusetts General Laws prohibits the elimination or limitation of such
liability.
The Registrant has purchased a general liability insurance policy
which covers certain liabilities of directors and officers of the Registrant
arising out of claims based on acts or omissions in their capacity as directors
or officers.
Item 7. Exemption from Registration Claimed
-----------------------------------
Two Hundred Thousand (200,000) shares of Common Stock of the
Registrant covered by this Registration Statement are being reoffered for resale
by a selling stockholder. Such shares were issued to the selling stockholder by
the Registrant in reliance on (S)4(2) of the Securities Act relating to sales by
an issuer not involving a public offering. The selling stockholder holds a
position with the Registrant that would afford him access to or disclosure of
the same type of information about the Registrant that a registration statement
would disclose. The selling stockholder represented his intention to acquire
such shares for investment only and not with a view to distribution thereof, and
an appropriate legend was affixed to the stock certificate issued to him.
II-4
<PAGE>
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings
------------
1. The 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; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
-------- -------
Registration Statement is on Form S-3 or Form S-8, 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.
II-5
<PAGE>
2. The 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 in the initial
bona fide offering thereof.
3. Insofar as indemnification for liabilities 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Westboro, Massachusetts on the 28th day of
February, 1997.
BANYAN SYSTEMS INCORPORATED
/s/ William P. Ferry
By:_____________________
William P. Ferry
President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Banyan Systems Incorporated,
hereby severally constitute William P. Ferry, Jeffrey D. Glidden and Mark G.
Borden, and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all subsequent amendments to said Registration Statement,
and generally to do all such things in our names and behalf in our capacities as
officers and directors to enable Banyan Systems Incorporated to comply with all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by said attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
<PAGE>
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ William P. Ferry President, Chief February 28, 1997
- --------------------
William P. Ferry Executive Officer and
Director (Principal
Executive Officer)
/s/ Jeffrey D. Glidden Senior Vice President, February 28, 1997
- ----------------------
Jeffrey D. Glidden Administration, Chief
Financial Officer and
Assistant Clerk (Principal
Financial Officer)
/s/ Richard M. Spaulding Vice President, Finance February 28, 1997
- ------------------------
Richard M. Spaulding and Treasurer (Principal
Accounting Officer)
/s/ G. Leonard Baker, Jr. Director February 28, 1997
- -------------------------
G. Leonard Baker, Jr.
/s/ John F. Burton Director February 28, 1997
- ------------------
John F. Burton
Director February 28, 1997
- ---------------------
A. Peter Hamilton
/s/ David C. Mahoney Director February 28, 1997
- --------------------
David C. Mahoney
/s/ Fontaine K. Richardson Director February 28, 1997
- --------------------------
Fontaine K. Richardson
/s/ David N. Strohm Director February 28, 1997
- -------------------
David N. Strohm
<PAGE>
REOFFER
PROSPECTUS
- ----------
BANYAN SYSTEMS INCORPORATED
120 Flanders Road
Westboro, Massachusetts 01581
Telephone: (508) 898-1000
200,000 SHARES OF COMMON STOCK
($.01 par value per share)
COMMON STOCK AWARD
-----------------------------------
The shares of common stock, $.01 par value per share (the "Common Stock"),
of Banyan Systems Incorporated (the "Company") covered by this Prospectus are
issued and outstanding shares which may be offered and sold, from time to time,
for the account of a certain stockholder of the Company (the "Selling
Stockholder"). The shares of Common Stock covered by this Prospectus (the
"Shares") were issued to the Selling Stockholder in connection with a written
employment agreement between the Selling Stockholder and the Company. This
Prospectus also covers such additional shares that may be issuable with respect
to the Shares in the event of any stock dividend, split-up of shares,
recapitalization or other similar change in the Common Stock. The Company will
not receive any of the proceeds from the sale of the Shares by the Selling
Stockholder.
-----------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------------------------------
The Selling Stockholder has advised the Company that he proposes to offer,
from time to time, all or part of the shares of Common Stock on the Nasdaq
National Market System in ordinary brokerage transactions, in negotiated
transactions, or otherwise, at such prices and on such terms as may be
obtainable and satisfactory to the Selling Stockholder. No underwriting
discounts or commissions will be paid other than normal brokerage commissions
and fees which will be payable by the Selling Stockholder. No sales or
distributions other than as described herein will be effected until this
Prospectus shall have been appropriately amended or supplemented. See "SELLING
STOCKHOLDER."
-----------------------------------
The date of this Prospectus is February 28, 1997.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files periodic reports and other information electronically with the
Securities and Exchange Commission (the "Commission"). The Commission maintains
a Website that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission
at http://www.sec.gov. Reports and other information concerning the Company may
be inspected at the Commission's Public Reference Room, Room 1024, 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549 and at the Commission's
regional offices located at 75 Park Place, New York, New York 10007, and at 500
West Madison Street, Chicago, Illinois 60661. Copies of such material, or any
portion thereof, may be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, at
prescribed rates. The Company's Common Stock is traded on the Nasdaq National
Market System under the symbol "BNYN". Reports, proxy statements and other
information concerning the Registrant may also be inspected at the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
The Company has filed with the Commission a Registration Statement on Form
S-8 under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Shares. This Prospectus does not contain all the information set
forth in the Registration Statement and the exhibits and schedules thereto, as
certain items are omitted in accordance with the rules and regulations of the
Commission. Statements contained in this Prospectus concerning the contents of
any agreement or other document referred to are not necessarily complete. Where
such agreement or other document is an exhibit to the Registration Statement
registering the shares offered under this Plan, each such statement is qualified
in all respects by the provisions of such exhibit, to which reference is hereby
made for a full statement of the provisions thereof. For further information
pertaining to the Company and the shares of Common Stock offered hereby,
reference is made to such Registration Statement and the exhibits and schedules
thereto, which may be inspected without charge at the office of the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies of which may be
obtained from the Commission at prescribed rates.
The Company hereby undertakes to provide, without charge, upon written or
oral request of any person, including a beneficial owner, to whom this
Prospectus is delivered, a copy of any and all documents incorporated by
reference in this Prospectus (not including exhibits to such documents other
than exhibits specifically incorporated by reference into such documents).
Requests for such information should be addressed to Banyan Systems
Incorporated, Attention: Treasurer, 120 Flanders Road, Westboro, Massachusetts
01581, telephone (508) 898-1000.
2
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFERING
DESCRIBED HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY OTHER
PERSON DEEMED TO BE AN UNDERWRITER. NEITHER DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THE DATES AS OF WHICH INFORMATION IS SET FORTH HEREIN. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE SHARES
COVERED BY THIS PROSPECTUS BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
----------------------------
TABLE OF CONTENTS
Page
----
THE COMPANY............................................................ 4
USE OF PROCEEDS........................................................ 4
SELLING STOCKHOLDER.................................................... 4
PLAN OF DISTRIBUTION................................................... 4
LEGAL MATTERS.......................................................... 5
INDEMNIFICATION........................................................ 5
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE........................ 6
3
<PAGE>
THE COMPANY
Banyan Systems Incorporated, a Massachusetts corporation (the "Company"),
is the issuer of the shares of Common Stock covered by this Prospectus. Its
principal executive offices are located at 120 Flanders Road, Westboro,
Massachusetts 01581 and its telephone number is (508) 898-1000.
USE OF PROCEEDS
The Company will not realize any of the proceeds from the sale of the
Shares by the Selling Stockholder.
SELLING STOCKHOLDER
The following table sets forth the name of the Selling Stockholder, the
nature of all positions which he has had within the past three years with the
Company, the number of shares of Common Stock beneficially owned by him as of
February 19, 1997, the number of Shares offered hereby and the number and
percentage of shares of Common Stock to be owned by him after the completion of
this offering:
<TABLE>
<CAPTION>
Number and
Number of Shares Percentage of
of Common Stock Common Stock
Beneficially Shares of Common Beneficially
Owned as of Stock Offered Owned After the
Name and Title February 19, 1997 Hereby Offering
- -------------- ----------------- ----- --------
<S> <C> <C> <C>
William P. Ferry(1) 241,666(2) 200,000 41,666
</TABLE>
(1) Mr. Ferry currently serves as President and Chief Executive Officer of the
Company. He assumed this position on February 19, 1997. Mr. Ferry is
also currently a member of the Company's Board of Directors, having been
elected a Director on February 27, 1997.
(2) Includes 41,666 shares of Common Stock issuable within 60 days of February
19, 1997 upon the exercise of options held by Mr. Ferry.
PLAN OF DISTRIBUTION
The Shares may be offered and sold from time to time by the Selling
Stockholder. The Selling Stockholder will act independently of the Company in
4
<PAGE>
making decisions with respect to the timing, manner and size of each sale. The
Selling Stockholder has advised the Company that he proposes to offer and sell,
from time to time, all or part of the Shares on the Nasdaq National Market
System in ordinary brokerage transactions, in negotiated transactions, or
otherwise, at such prices and on such other terms as may be obtainable and
satisfactory to the Selling Stockholder. No underwriting discounts or
commissions will be paid other than normal brokerage commission and fees which
will be payable by the Selling Stockholder. No sales or distributions other
than as described herein will be effected until this Prospectus shall have been
appropriately amended or supplemented. The Common Stock is traded on the Nasdaq
National Market System. The Company has been advised by the Selling Stockholder
that he has not, as of the date hereof, made any arrangements relating to the
distribution of the Shares.
LEGAL MATTERS
The legality of the Common Stock offered hereby will be passed upon for the
Company by Hale and Dorr LLP, 60 State Street, Boston, Massachusetts 02109.
INDEMNIFICATION
Section 67 of Chapter 156B of the Massachusetts General Laws ("Section 67")
provides that a corporation may indemnify its directors and officers to the
extent specified in or authorized by (i) the articles of organization, (ii) a
by-law adopted by the stockholders, or (iii) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election of directors.
In all instances, the extent to which a corporation provides indemnification to
its directors and officers under Section 67 is optional. In its Second Amended
and Restated Articles of Organization the Company has elected to commit to
provide indemnification to its directors and officers in specified
circumstances. Generally, Article 6 of the Company's Second Amended and
Restated Articles of Organization indemnifies directors and officers of the
Company against liabilities and expenses arising out of legal proceedings
brought against them by reason of their status or service as directors or
officers or by reason of their agreeing to serve, at the request of the Company,
as a director or officer of, or in a similar capacity with, another organization
or in any capacity with respect to any employee benefit plan of the Company.
Under this provision, a director or officer of the Company shall be indemnified
by the Company for all expenses, judgments, fines and amounts paid in settlement
of such proceedings, even if he or she is not successful on the merits, if he or
she acted in good faith and in a manner he or she reasonably believed to be in
the best interests of the Company.
The Company's Second Amended and Restated Articles of Organization
establishes the presumption that the director or officer has met the applicable
5
<PAGE>
standard of conduct required for indemnification. The indemnification above
shall be made unless the Company determines, by clear and convincing evidence,
that the applicable standard of conduct has not been met. Such a determination
may be made by a majority of a quorum of the directors, independent legal
counsel, the stockholders, or a court of competent jurisdiction. The Board of
Directors shall authorize advancing litigation expenses to a director or officer
at his or her request upon receipt of an undertaking by such director or officer
to repay such expenses if it is ultimately determined that he or she is not
entitled to indemnification for such expenses.
The Company's Second Amended and Restated Articles of Organization also
provide that, in the event or determination by the Company that a director or
officer did not meet the standard of conduct required for indemnification, or if
the Company fails to make an indemnification payment or an advance of expenses
within 60 days after such payment is claimed by a director or officer, such
director or officer may petition a court to make an independent determination of
whether such director or officer is entitled to indemnification. The Company's
Second Amended and Restated Articles of Organization explicitly provide for
partial indemnification of costs and expenses in the event that a director or
officer is not entitled to full indemnification.
Article 6 of the Company's Second Amended and Restated Articles of
Organization also eliminates the personal liability of the Company's directors
to the Company or its stockholders for monetary damages for breach of a
director's fiduciary duty, except to the extent Chapter 156B of the
Massachusetts General Laws prohibits the elimination or limitation of such
liability.
The Company has purchased a general liability insurance policy which covers
certain liabilities of directors and officers of the Company arising out of
claims based on acts or omissions in their capacity as directors or officers.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which are filed with the Commission, are
incorporated in this Prospectus by reference:
(1) The Company's latest annual report filed pursuant to Sections 13(a) or
15(d) of the Exchange Act, or the latest prospectus filed pursuant to Rule
424(b)
6
<PAGE>
under the Securities Act that contains audited financial statements for
the registrant's latest fiscal year for which such statements have been filed.
(2) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (1) above.
(3) The Company's Registration Statement on Form 8-A dated August 6, 1992
registering the Common Stock under Section 12(g) of the Exchange Act.
All documents subsequently filed by the Company 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 shares of Common Stock offered hereby have
been sold or which deregisters all shares of Common Stock then remaining unsold,
shall be deemed to be incorporated by reference herein and to be part hereof
from the date of the filing of such documents. 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 Prospectus 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 statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
The Company hereby undertakes to provide, without charge, upon written or
oral request of any person to whom this Prospectus is delivered, a copy of any
and all documents incorporated by reference in this Prospectus (not including
exhibits to such documents other than exhibits specifically incorporated by
reference into such documents). Requests for such information should be
addressed to Banyan Systems Incorporated, Attention: Treasurer, 120 Flanders
Road, Westboro, Massachusetts 01581, telephone (508) 898-1000.
7
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
Number Description Page
- ------- ----------- ----
4.1 (1) Specimen Certificate of Common Stock of
the Registrant
5.1 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
23.2 Consent of Coopers & Lybrand L.L.P.
24.1 Power of Attorney (included on the signature
page of this Registration Statement)
- --------------------
(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (File No. 33-49194).
<PAGE>
HALE AND DORR LLP
Counsellors At Law
60 State Street
Boston, Massachusetts 02109
Exhibit 5.1
-----------
February 28, 1997
Banyan Systems Incorporated
120 Flanders Road
Westboro, MA 01581
Re: Non-Qualified Stock Option
Common Stock Award
--------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to 1,200,000 shares of Common Stock, $.01 par value per
share (the "Shares"), of Banyan Systems Incorporated, a Massachusetts
corporation (the "Company"), issued and issuable, respectively, pursuant to a
common stock award and a non-qualified stock option granted by the Company to a
certain recipient pursuant to a written employment agreement executed between
the Company and such recipient.
We have examined the Second Amended and Restated Articles of
Organization of the Company, the By-Laws of the Company, as amended, and
originals, or copies certified to our satisfaction, of all pertinent records of
the meetings of the directors and stockholders of the Company, the Registration
Statement and such other documents relating to the Company as we have deemed
material for the purposes of this opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies, and the authenticity of the originals
of such latter documents.
Based on the foregoing, we are of the opinion that the Company has duly
authorized for issuance the Shares, and such Shares, now issued and when issued
in accordance with the terms of the non-qualified stock option, are and will be
legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ Hale and Dorr
-----------------
HALE AND DORR LLP
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Banyan Systems Incorporated on Form S-8 of our reports dated January 25, 1996,
on our audits of the consolidated financial statements and financial statement
schedule of each Banyan Systems Incorporated as of December 31, 1995 and 1994,
and for each of the three years in the period ended December 31, 1995, which
reports are included or incorporated by reference in the Annual Report on Form
10-K of Banyan Systems Incorporated for the year ended December 31, 1995.
/s/ Coopers & Lybrand L.L.P.
-----------------------------
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
February 28, 1997
