<PAGE>
As filed with the Securities and Exchange Commission
on February 13, 1998
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
(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)
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)
===============================================================================
CALCULATION OF REGISTRATION FEE
===============================================================================
<TABLE>
<CAPTION>
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 160,000 shares $3.47(1) $555,200(1) $164
$0.01 par value
==============================================================================
</TABLE>
(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 February 6, 1998 in accordance with Rules
457(c) and 457(h) of the Securities Act of 1933.
===============================================================================
<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 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 160,000 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
report or the prospectus referred to in (1) above.
(3) The description of the common stock of the Registrant, $0.01 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.
II-1
<PAGE>
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 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
II-2
<PAGE>
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
-----------------------------------
One Hundred Sixty Thousand (160,000) shares of Common Stock 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.
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.
II-3
<PAGE>
(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.
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 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 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
<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 Town of Westboro, Commonwealth of Massachusetts on this 13th
day of February, 1998.
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.
II-5
<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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ William P. Ferry President, Chief Executive February 13, 1998
- ----------------------------
William P. Ferry Officer and Director
(Principal
Executive Officer)
/s/ Richard M. Spaulding Vice President, Finance February 13, 1998
- ----------------------------
Richard M. Spaulding and Chief Financial
Officer (Principal Financial
Officer and Principal
Accounting Officer)
/s/ G. Leonard Baker, Jr. Director February 13, 1998
- ----------------------------
G. Leonard Baker, Jr.
/s/ John F. Burton Director February 13, 1998
- ----------------------------
John F. Burton
/s/ A. Peter Hamilton Director February 13, 1998
- ----------------------------
A. Peter Hamilton
/s/ David C. Mahoney Director February 13, 1998
- ----------------------------
David C. Mahoney
/s/ Fontaine K. Richardson Director February 13, 1998
- ----------------------------
Fontaine K. Richardson
/s/ David N. Strohm Director February 13, 1998
- ----------------------------
David N. Strohm
</TABLE>
II-6
<PAGE>
REOFFER
PROSPECTUS
- ----------
BANYAN SYSTEMS INCORPORATED
120 Flanders Road
Westboro, Massachusetts 01581
Telephone: (508) 898-1000
160,000 SHARES OF COMMON STOCK
($0.01 par value per share)
COMMON STOCK AWARD
-----------------------------------
The shares of common stock, $0.01 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 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."
SEE "RISK FACTORS" COMMENCING ON PAGE 1 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED
HEREBY.
The date of this Prospectus is February 13, 1998
<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 reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such documents may be
inspected and copied at the Commission's public reference room located at 450
Fifth Street, N.W., Room 1024, Washington, D.C. and at the public reference
facilities in the Commission's Regional Offices located at: 7 World Trade
Center, Suite 1300, New York, New York 10048 and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such documents
may also be obtained at prescribed rates by writing to the Securities and
Exchange Commission, Public Reference Section, 450 Fifth Street, N.W.,
Washington, D.C. 20549. In addition, the Commission maintains a World Wide Web
site at http://www.sec.gov that contains reports, proxy statements and other
information regarding registrants, such as the Company, that file electronically
with the Commission. Reports, proxy statements and other information concerning
the Company may also be inspected at the offices of the Company. The Company's
Common Stock is traded on the Nasdaq National Market under the symbol "BNYN."
------------------------------------
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.
-----------------------------------
<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
----
<TABLE>
<CAPTION>
<S> <C>
RISK FACTORS..................................... 1
THE COMPANY...................................... 2
USE OF PROCEEDS.................................. 2
SELLING STOCKHOLDER.............................. 2
PLAN OF DISTRIBUTION............................. 3
LEGAL MATTERS.................................... 3
INDEMNIFICATION.................................. 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.. 5
</TABLE>
<PAGE>
RISK FACTORS
In addition to the other information contained in this Reoffer Prospectus
and the information incorporated herein by reference, the following factors
should be considered carefully by potential investors in evaluating Banyan
Systems Incorporated, a Massachusetts corporation (the "Company"), and the
Company's business before investing in the Company's Common Stock, $0.01 par
value per share (the "Common Stock") offered hereby.
Dependence Upon Existing Customers; Need to Expand Customer Base. In a
----------------------------------------------------------------
majority of the Company's product sales were to existing customers for upgrade
or expansion of their networks. The Company's results will depend on its
ability both to continue to sell products for use in networks of existing
customers and to attract new customers for the Company's products. In addition,
in 1997, the Company experienced extended selling cycles due to an increase in
multi-year customer agreements and to longer evaluation of operating systems and
hardware platforms by potential customers. The Company expects that extended
selling cycles will continue to affect the Company's operating results for the
foreseeable future.
Dependence Upon Technological Advancement; Market Introduction and
------------------------------------------------------------------
Acceptance of Products. The Company's results are partially dependent on its
- ----------------------
ability to enhance existing products and introduce new products on a timely
basis, and to achieve market acceptance for such products. In September 1996,
the Company introduced StreetTalk for Windows NT, which integrates the Windows
NT operating system into a VINES network. In June 1997, the Company introduced
StreetTalk for Windows NT 7.5 which provides for improved support for TCP/IP
standards. Failure of these products to achieve market acceptance could have a
material adverse effect on the Company's future results of operations.
Limited History as an Internet Product Provider. The Company has invested
-----------------------------------------------
significant resources to develop products and services to bring the Company's
directory and messaging capabilities to Internet users. In 1996, the Company
introduced Switchboard, a directory service for Internet users. The Company has
limited experience in developing or selling products for the Internet and the
success of the Company will depend in part on its ability to enter into
strategic alliances with other Internet providers. Any delay in developing
additional or enhanced products and services for the Internet or failure of its
Internet products and services to achieve market acceptance could have a
material adverse effect on the Company's future results of operations.
Competition. The markets for the Company's products are highly competitive
-----------
and characterized by rapidly changing technology. There can be no assurance
that current or potential competitors will not introduce products that offer
performance or other features that are more attractive than those of the
Company's products. Many of the Company's competitors have greater name
recognition, larger installed bases and greater financial resources than the
Company and therefore may be able to adapt more quickly to new or emerging
technologies and changes in customer requirements. Other factors that may
affect the Company's future operating results
-1-
<PAGE>
include its ability to expand its international sales, its dependence on
indirect reseller channels, declines in purchases by any major reseller, and
fluctuations in currency exchange rates.
Operational Reorganization. In 1996, the Company announced a
--------------------------
reorganization of its operations, including the search for a new president and
chief executive officer and a reduction of approximately 15% of its work force.
The Company also reduced worldwide channel inventories of its distribution
partners by approximately $9.0 million in the quarter ended December 31, 1996,
which contributed to a decline in software revenues and a net operating loss in
the quarter ended December 31, 1996. In the second quarter of 1997, following
the hiring of the new president and chief executive officer, the Company
announced a further reorganization of its operations. As a result of this
reorganization the Company recorded net pre-tax restructuring and other charges
of approximately $8.0 million in the year ended December 31, 1997. The
restructuring and other charges provided for severance costs related to the
reduction of approximately 22% of the Company's workforce and costs related to
facility and product line consolidations. There can be no assurance the
reorganization will be successful or will not have an adverse effect on the
Company. In addition, the Company's future success will depend on its ability to
retain its key employees and attract new employees, and there can be no
assurance it will be able to do so.
THE COMPANY
The Company is the issuer of the shares of Common Stock covered by this
Prospectus (the "Shares"). The Company's 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
January 31, 1998, 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:
-2-
<PAGE>
<TABLE>
<CAPTION>
Number /
Number of Shares Percentage of
of Common Stock Shares of Common Stock
Beneficially Common Beneficially
Owned as of Stock Offered Owned After the
Name and Title January 31, 1998 Hereby Offering
-------------- ---------------- ------ --------
<S> <C> <C> <C>
William P. Ferry(1) 430,829(2) 160,000 270,829 / 1.54%
</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 Chairman of the Company's Board of Directors, having been elected
a director on February 27, 1997 and Chairman on October 21, 1997.
(2) Includes 270,829 shares of Common Stock issuable within 60 days of January
31, 1998 upon the exercise of stock 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
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 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. 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
-3-
<PAGE>
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
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.
-4-
<PAGE>
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) 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.
-5-
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
Number Description
- ------- -----------
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
---------
HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * Fax 617-526-5000
February 13, 1998
Banyan Systems Incorporated
120 Flanders Road
Westboro, MA 01581
Re: 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 (the "Commission") relating to 160,000 shares of Common Stock, $0.01
par value per share (the "Shares"), of Banyan Systems Incorporated, a
Massachusetts corporation (the "Company"), issued pursuant to a common stock
award granted by the Company to a certain recipient pursuant to a written
employment agreement executed between the Company and such recipient (the
"Common Stock Award").
We have examined the Second Amended and Restated Articles of Organization
of the Company, the Amended and Restated By-Laws of the Company 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 issued pursuant to the Common Stock Award, to register and
qualify the Shares for sale under all applicable state securities or "blue sky"
laws.
<PAGE>
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
Shares have been duly authorized and are validly 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 of 1933, as amended
(the "Securities Act"), and to the use of our name under the caption
"Legal Matters" in the Reoffer Prospectus filed therewith. 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
------------
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
February 12, 1998
