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As filed with the Securities and Exchange Commission
on November 20, 1997
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
BANYAN SYSTEMS INCORPORATED
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS
(State or Other Jurisdiction of Incorporation or Organization)
04-2798394
(I.R.S. Employer Identification Number)
120 FLANDERS ROAD, WESTBORO, MASSACHUSETTS 01581
(Address of Principal Executive Offices) (Zip Code)
NON-QUALIFIED STOCK OPTION
(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)
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CALCULATION OF REGISTRATION FEE
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Title Of Amount Proposed Proposed Amount Of
Securities To Be Maximum Maximum Registration
To Be Registered Offering Aggregate Fee
Registered Price Per Offering
Share Price
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 50,000 shares $3.375(1) $168,750.00(1) $52.00
$.01 par value
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(1) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low sale prices of the Common Stock
on the Nasdaq National Market on November 19, 1997 in accordance with Rules
457(c) and 457(h) of the Securities Act of 1933.
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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 from
Banyan Systems Incorporated (the "Registrant") pursuant to Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act").
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
report 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 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.
II-1
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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 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.
II-2
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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
-----------------------------------
Not Applicable.
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 to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
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.
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.
II-3
<PAGE>
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
Securities Act and is, therefore, unenforce able. 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-4
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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 Town of Westboro, Commonwealth of Massachusetts on this 20th
day of November, 1997.
BANYAN SYSTEMS INCORPORATED
By: /s/ William P. Ferry
--------------------
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, Richard M. Spaulding 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.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ William P. Ferry President, Chief Executive November 20, 1997
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William P. Ferry Officer and Director (Principal
Executive Officer)
/s/ Richard M. Spaulding Vice President, Finance November 20, 1997
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Richard M. Spaulding and Chief Financial
Officer (Principal Financial
Officer and Principal
Accounting Officer)
/s/ G. Leonard Baker, Jr. Director November 20, 1997
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G. Leonard Baker, Jr.
/s/ John F. Burton Director November 20, 1997
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John F. Burton
/s/ A. Peter Hamilton Director November 20, 1997
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A. Peter Hamilton
/s/ David C. Mahoney Director November 20, 1997
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David C. Mahoney
/s/ Fontaine K. Richardson Director November 20, 1997
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Fontaine K. Richardson
/s/ David N. Strohm Director November 20, 1997
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David N. Strohm
</TABLE>
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EXHIBIT INDEX
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Exhibit
Number Description
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4 (1) Specimen Certificate for shares of Common Stock of the Registrant
5 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
24 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>
EXHIBIT 5
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HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * Fax 617-526-5000
November 20, 1997
Banyan Systems Incorporated
120 Flanders Road
Westboro, MA 01581
Re: Non-Qualified Stock Option
--------------------------
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 50,000 shares of Common Stock, $.01 par value per share
(the "Shares"), of Banyan Systems Incorporated, a Massachusetts corporation (the
"Company"), issuable pursuant to a non-qualified option granted by the Company
to a certain optionee pursuant to a written employment agreement executed
between the Company and such optionee (the "Non-Qualified Option").
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, photostatic or facsimile copies, the authenticity of the originals
of such latter documents and the legal competence of all signatories to such
documents.
We assume that the appropriate action will be taken, prior to the offer and
sale of the shares in accordance with the Non-Qualified Option, to register and
qualify the shares for sale under all applicable state securities or "blue sky"
laws.
<PAGE>
Banyan Systems Incorporated
November 20, 1997
Page 2
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of the Commonwealth of Massachusetts and the federal
laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Company has duly authorized for issuance the Shares covered by the Registration
Statement to be issued under the Non-Qualified Option, as described in the
Registration Statement, and such Shares, when issued in accordance with the
terms of the Non-Qualified Option, will be legally issued, fully paid and
nonassessable.
It is understood that this opinion is to be used only in connection with
the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein under the caption "Interests of Named Experts and Counsel." In
giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the Commission.
Very truly yours,
/s/ Hale and Dorr LLP
---------------------
HALE AND DORR LLP
<PAGE>
Exhibit 23.2
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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 31, 1997,
on our audits of the consolidated financial statements and financial statement
schedule of Banyan Systems Incorporated as of December 31, 1996 and 1995, and
for each of the three years in the period ended December 31, 1996, 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, 1996.
/s/ Coopers & Lybrand L.L.P.
-----------------------------------
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
November 20, 1997
