<PAGE>
As filed with the Securities and Exchange Commission
on May 27, 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 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)
1992 STOCK INCENTIVE PLAN
(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>
==========================================================================================
PROPOSED PROPOSED
TITLE OF SECURITIES AMOUNT TO MAXIMUM MAXIMUM
TO BE REGISTERED BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------
Common Stock 800,000 $8.09(1) $6,475,000(1) $1,911
$.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 May 26, 1998 in accordance with Rules
457(c) and 457(h) of the Securities Act of 1933, as amended.
================================================================================
<PAGE>
Statement of Incorporation by Reference
---------------------------------------
This Registration Statement on Form S-8 incorporates by reference the
contents of (i) PART I and (ii) PART II, Items 3, 4, 6, 7, 8 and 9, of the
Registration Statement on Form S-8, File No. 33-50862, filed by the Registrant
on August 14, 1992 relating to the Registrant's 1992 Stock Incentive Plan.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended (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 27th day of May, 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.
<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 May 27, 1998
- --------------------------- Executive Officer and
William P. Ferry Director (Principal
Executive Officer)
/s/ Richard M. Spaulding Vice President and May 27, 1998
- --------------------------- Chief
Richard M. Spaulding Financial Officer and
Treasurer (Principal
Financial Officer and
Principal Accounting
Officer)
/s/ G. Leonard Baker, Jr. Director May 27, 1998
- ---------------------------
G. Leonard Baker, Jr.
/s/ John F. Burton Director May 27, 1998
- ---------------------------
John F. Burton
/s/ David C. Mahoney Director May 27, 1998
- ---------------------------
David C. Mahoney
/s/ Fontaine K. Richardson Director May 27, 1998
- ---------------------------
Fontaine K. Richardson
/s/ David N. Strohm Director May 27, 1998
- ---------------------------
David N. Strohm
/s/ Robert M. Wadsworth Director May 27, 1998
- ---------------------------
Robert M. Wadsworth
</TABLE>
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4/(1)/ Specimen Certificate for shares of Common Stock, $.01 par
value per share, of the Registrant
5 Opinion of Hale and Dorr LLP
10 1992 Stock Incentive Plan, as amended
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on the signature page of this
Registration Statement)
</TABLE>
- ------------------------
(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
May 27, 1998
Banyan Systems Incorporated
120 Flanders Road
Westboro, Massachusetts 01581
Re: 1992 Stock Incentive Plan
-------------------------
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 800,000 additional shares of
Common Stock, $.01 par value per share (the "Shares"), of Banyan Systems
Incorporated, a Massachusetts corporation (the "Company"), issuable pursuant to
the Company's 1992 Stock Incentive Plan (the "Plan").
We have examined the Second Amended and Restated Articles of
Organization of the Company, as amended, 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 the sale of the Shares issuable pursuant to the Plan, to register and
qualify the Shares for sale under all applicable state securities or "blue sky"
laws.
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, and such Shares, when
issued in accordance with the terms of the Plan, will be 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"). 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 10
----------
Banyan Systems Incorporated
1992 Stock Incentive Plan
-------------------------
Section 1. Purpose
-------
The purpose of this Stock Incentive Plan (the "Plan") is to advance
the interests of Banyan Systems Incorporated by enhancing its ability to attract
and retain key employees, consultants and others who are in a position to
contribute to the Company's future growth and success.
Section 2. Definitions
-----------
"Award" means any Option, Stock Appreciation Right, Performance Share,
Restricted Stock or Unrestricted Stock awarded under the Plan.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Committee" means a committee of not less than two members of the
Board appointed by the Board to administer the Plan, provided that if and when
the Common Stock is registered under Section 12 of the Securities Exchange Act
of 1934, each member of the Committee shall be a "disinterested person" within
the meaning of Rule 16b-3 under the Securities Exchange Act of 1934
("Rule 16b-3").
"Common Stock" or "Stock" means the Common Stock, $.01 par value per
share, of the Company.
"Company" means Banyan Systems Incorporated and, except where the
content otherwise requires, all present and future subsidiaries of the Company
as defined in Sections 424(f) of the Code.
"Designated Beneficiary" means the beneficiary designated by a
Participant, in a manner determined by the Board, to receive amounts due or
exercise rights of the Participant in the event of the Participant's death. In
the absence of an effective designation by a Participant, Designated Beneficiary
shall mean the Participant's estate.
<PAGE>
"Fair Market Value" means, with respect to Common Stock or any other
property, the fair market value of such property as determined by the Board in
good faith or in the manner established by the Board from time to time.
"Incentive Stock Option" means an option to purchase shares of Common
Stock awarded to a Participant under Section 6 which is intended to meet the
requirements of Section 422 of the Code or any successor provision.
"Nonstatutory Stock Option" means an option to purchase shares of
Common Stock awarded to a Participant under Section 6 which is not intended to
be an Incentive Stock Option.
"Option" means an Incentive Stock Option or a Nonstatutory Stock
Option.
"Participant" means a person selected by the Board to receive an Award
under the Plan.
"Performance Shares" mean shares of Common Stock which may be earned
by the achievement of performance goals awarded to a Participant under
Section 8.
"Reporting Person" means a person subject to Section 16 of the
Securities Exchange Act of 1934 or any successor provision.
"Restricted Period" means the period of time selected by the Board
during which shares subject to a Restricted Stock Award may be repurchased by or
forfeited to the Company.
"Restricted Stock" means shares of Common Stock awarded to a
Participant under Section 9.
"Stock Appreciation Right" or "SAR" means a right to receive any
excess in Fair Market Value of shares of Common Stock over the exercise price
awarded to a Participant under Section 7.
"Unrestricted Stock" means shares of Common Stock awarded to a
Participant under Section 9(c).
Section 3. Administration
--------------
The Plan will be administered by the Board. The Board shall have
authority to make Awards and to adopt, amend and repeal such administrative
rules, guidelines and practices relating to the Plan as it shall deem advisable
from time to
-2-
<PAGE>
time, and to interpret the provisions of the Plan. The Board's decisions shall
be final and binding. No member of the Board shall be liable for any action or
determination relating to the Plan made in good faith. To the extent permitted
by applicable law, the Board may delegate to one or more executive officers of
the Company the power to make Awards to Participants who are not Reporting
Persons and all determinations under the Plan with respect thereto, provided
that the Board shall fix the maximum amount of such Awards to be made by such
executive officers and a maximum amount for any one Participant. To the extent
permitted by applicable law, the Board may appoint a Committee to administer the
Plan and, in such event, all references to the Board in the Plan shall mean such
Committee or the Board. All decisions by the Board or the Committee pursuant to
the Plan shall be final and binding on all persons having or claiming any
interest in the Plan or in any Award.
Section 4. Eligibility
-----------
All of the Company's employees, officers, directors, consultants and
advisors who are expected to contribute to the Company's future growth and
success, other than persons who have irrevocably elected not to be eligible, are
eligible to be Participants in the Plan. Incentive Stock Options may be awarded
only to persons eligible to receive Incentive Stock Options under the Code.
Section 5. Stock Available for Awards
--------------------------
(a) Subject to adjustment under subsection (b) below, Awards may be
made under the Plan for up to 1,000,000 shares of Common Stock. If any Award in
respect of shares of Common Stock expires or is terminated unexercised or is
forfeited for any reason or settled in a manner that results in fewer shares
outstanding than were initially awarded, the shares subject to such Award or so
surrendered, as the case may be, to the extent of such expiration, termination,
forfeiture or decrease, shall again be available for award under the Plan,
subject, however, in the case of Incentive Stock Options, to any limitation
required under the Code. Shares issued under the Plan may consist in whole or
in part of authorized but unissued shares or treasury shares.
(b) In the event that the Board, in its sole discretion, determines
that any stock dividend, extraordinary cash dividend, recapitalization,
reorganization, merger, consolidation, split-up, spin-off, combination or other
similar transaction affects the Common Stock such that an adjustment is required
in order to preserve the benefits or potential benefits intended to be made
available under the Plan, then the Board, subject, in the case of Incentive
Stock Options, to any limitation required under the Code, shall equitably adjust
any or all of (i) the number and kind of shares in respect of which Awards may
be made under the Plan, (ii) the number and kind of shares subject to
outstanding Awards, and (iii) the award, exercise or conversion price with
respect to any of the foregoing, and if considered appropriate, the Board
-3-
<PAGE>
may make provision for a cash payment with respect to an outstanding Award,
provided that the number of shares subject to any Award shall always be a whole
number.
(c) The Board may grant Awards under the Plan in substitution for
stock and stock based awards held by employees of another corporation who
concurrently become employees of the Company as a result of a merger or
consolidation of the employing corporation with the Company or a Subsidiary or
the acquisition by the Company or a subsidiary of property or stock of the
employing corporation. The substitute Awards shall be granted on such terms and
conditions as the Board considers appropriate in the circumstances. The shares
which may be delivered under such substitute Awards shall be in addition to the
maximum number of shares provided for in Section 5(a) only to the extent that
the substitute Awards are both (i) granted to persons whose relationship to the
Company does not make (and is not expected to make) them Reporting Persons; and
(ii) granted in substitution for awards issued under a plan approved, to the
extent then required under Rule 16b-3, by the stockholders of the entity which
issued such predecessor awards.
Section 6. Stock Options
-------------
(a) General.
-------
(i) Subject to the provisions of the Plan, the Board may
award Incentive Stock Options and Nonstatutory Stock Options, and determine the
number of shares to be covered by each Option, the option price therefor and the
conditions and limitations applicable to the exercise of the Option. The terms
and conditions of Incentive Stock Options shall be subject to and comply with
Section 422 of the Code, or any successor provision, and any regulations
thereunder.
(ii) The Board shall establish the exercise price at the
time each Option is awarded. In the case of Incentive Stock Options, such price
shall not be less than 100% of the Fair Market Value of the Common Stock on the
date of award.
(iii) Each Option shall be exercisable at such times and
subject to such terms and conditions as the Board may specify in the applicable
Award or thereafter. The Board may impose such conditions with respect to the
exercise of Options, including conditions relating to applicable federal or
state securities laws, as it considers necessary or advisable.
(iv) Options granted under the Plan may provide for the
payment of the exercise price by delivery of cash or check in an amount equal to
the exercise price of such Options or, to the extent permitted by the Board at
or after the award of the Option, by (A) delivery of shares of Common Stock
owned by the
-4-
<PAGE>
optionee for at least six months (or such shorter period as is approved by the
Board), valued at their Fair Market Value, (B) delivery of a promissory note of
the optionee to the Company on terms determined by the Board, (C) delivery of an
irrevocable undertaking by a broker to deliver promptly to the Company
sufficient funds to pay the exercise price or delivery of irrevocable
instructions to a broker to deliver promptly to the Company cash or a check
sufficient to pay the exercise price, (D) payment of such other lawful
consideration as the Board may determine, or (E) any combination of the
foregoing.
(v) The Board may provide for the automatic award of an
Option upon the delivery of shares to the Company in payment of the exercise
price of an Option for up to the number of shares so delivered.
(vi) The Board may at any time accelerate the time at
which all or any part of an Option may be exercised.
(b) Incentive Stock Options.
-----------------------
Options granted under the Plan which are intended to be Incentive
Stock Options shall be subject to the following additional terms and conditions:
(i) All Incentive Stock Options granted under the Plan
shall, at the time of grant, be specifically designated as such in the option
agreement covering such Incentive Stock Options. The Option exercise period
shall not exceed ten years from the date of grant.
(ii) If any employee to whom an Incentive Stock Option is
to be granted under the Plan is, at the time of the grant of such option, the
owner of stock possessing more than 10% of the total combined voting power of
all classes of stock of the Company (after taking into account the attribution
of stock ownership rule of Section 424(b) and of the Code), then the following
special provisions shall be applicable to the Incentive Stock Option granted to
such individual:
(x) The purchase price per share of the Common
Stock subject to such Incentive Stock Option shall not be less than
110% of the Fair Market Value of one share of Common Stock at the time
of grant; and
(y) The option exercise period shall not exceed
five years from the date of grant.
(iii) For so long as the Code shall so provide, options
granted to any employee under the Plan (and any other incentive stock option
plans of the
-5-
<PAGE>
Company) which are intended to constitute Incentive Stock Options shall not
constitute Incentive Stock Options to the extent that such options, in the
aggregate, become exercisable for the first time in any one calendar year for
shares of Common Stock with an aggregate Fair Market Value (determined as of the
respective date or dates of grant) of more than $100,000.
(iv) No Incentive Stock Option may be exercised unless,
at the time of such exercise, the Participant is, and has been continuously
since the date of grant of his or her Option, employed by the Company, except
that:
(x) an Incentive Stock Option may be exercised
within the period of three months after the date the Participant
ceases to be an employee of the Company (or within such lesser period
as may be specified in the applicable option agreement), provided,
--------
that the with respect to such Option may designate a longer exercise
period and that the exercise after such three-month period shall be
treated as the exercise of a Nonstatutory Stock Option under the Plan;
(y) if the Participant dies while in the employ of
the Company, or within three months after the Participant ceases to be
such an employee, the Incentive Stock Option may be exercised by the
Participant's Designated Beneficiary within the period of one year
after the date of death (or within such lesser period as may be
specified in the applicable Option agreement); and
(z) if the Participant becomes disabled (within
the meaning of Section 22(e)(3) of the Code or any successor provision
thereto) while in the employ of the Company, the Incentive Stock
Option may be exercised within the period of one year after the date
of death (or within such lesser period as may be specified in the
Option agreement).
For all purposes of the Plan and any Option granted hereunder, "employment"
shall be defined in accordance with the provisions of Section 1.421-7(h) of the
Income Tax Regulations (or any successor regulations). Notwithstanding the
foregoing provisions, no Incentive Stock Option may be exercised after its
expiration date.
Section 7. Stock Appreciation Rights
-------------------------
(a) The Board may grant Stock Appreciation Rights entitling
recipients on exercise of the SAR to receive an amount, in cash or Stock or a
combination thereof (such form to be determined by the Board), determined in
whole or in part by reference to appreciation in the Fair Market Value of the
Stock between the date of the Award and the exercise of the Award. A Stock
Appreciation Right
-6-
<PAGE>
shall entitle the Participant to receive, with respect to each share of Stock as
to which the SAR is exercised, the excess of the share's Fair Market Value on
the date of exercise over its Fair Market Value on the date the SAR was granted.
The Board may also grant Stock Appreciation Rights that provide that, following
a change in control of the Company (as defined by the Board at the time of the
Award), the holder of such SAR will be entitled to receive, with respect to each
share of Stock subject to the SAR, an amount equal to the excess of a specified
value (which may include an average of values) for a share of Stock during a
period preceding such change in control over the Fair Market Value of a share of
Stock on the date the SAR was granted.
(b) Stock Appreciation Rights may be granted in tandem with, or
independently of, Options granted under the Plan. A Stock Appreciation Right
granted in tandem with an Option which is not an Incentive Stock Option may be
granted either at or after the time the Option is granted. A Stock Appreciation
Right granted in tandem with an Incentive Stock Option may be granted only at
the time the Option is granted.
(c) When Stock Appreciation Rights are granted in tandem with
Options, the following provisions will apply:
(i) The Stock Appreciation Right will be exercisable
only at such time or times, and to the extent, that the related Option is
exercisable and will be exercisable in accordance with the procedure required
for exercise of the related Option.
(ii) The Stock Appreciation Right will terminate and no
longer be exercisable upon the termination or exercise of the related Option,
except that a Stock Appreciation Right granted with respect to less than the
full number of shares covered by an Option will not be reduced until the number
of shares as to which the related Option has been exercised or has terminated
exceeds the number of shares not covered by the Stock Appreciation Right.
(iii) The Option will terminate and no longer be
exercisable upon the exercise of the related Stock Appreciation Right.
(iv) The Stock Appreciation Right will be transferable
only with the related Option.
(v) A Stock Appreciation Right granted in tandem with an
Incentive Stock Option may be exercised only when the market price of the Stock
subject to the Option exceeds the exercise price of such option.
-7-
<PAGE>
(d) A Stock Appreciation Right not granted in tandem with an
Option will become exercisable at such time or times, and on such conditions, as
the Board may specify.
(e) The Board may at any time accelerate the time at which all or
any part of the SAR may be exercised.
Section 8. Performance Shares
------------------
(a) The Board may make Performance Share Awards entitling
recipients to acquire shares of Stock upon the attainment of specified
performance goals. The Board may make Performance Share Awards independent of or
in connection with the granting of any other Award under the Plan. The Board in
its sole discretion shall determine the performance goals applicable under each
such Award, the periods during which performance is to be measured, and all
other limitations and conditions applicable to the awarded Performance Shares;
provided, however, that the Board may rely on the performance goals and other
standards applicable to other performance plans of the Company in setting the
standards for Performance Share Awards under the Plan.
(b) Performance Share Awards and all rights with respect to such
Awards may not be sold, assigned, transferred, pledged or otherwise encumbered.
(c) A Participant receiving a Performance Share Award shall have
the rights of a stockholder only as to shares actually received by the
Participant under the Plan and not with respect to shares subject to an Award
but not actually received by the Participant. A Participant shall be entitled to
receive a stock certificate evidencing the acquisition of shares of Stock under
a Performance Share Award only upon satisfaction of all conditions specified in
the agreement evidencing the Performance Share Award.
(d) The Board may at any time accelerate or waive any or all of
the goals, restrictions or conditions imposed under any Performance Share Award.
Section 9. Restricted and Unrestricted Stock
---------------------------------
(a) The Board may grant Restricted Stock Awards entitling
recipients to acquire shares of Stock, subject to the right of the Company to
repurchase all or part of such shares at their purchase price (or to require
forfeiture of such shares if purchased at no cost) from the recipient in the
event that conditions specified by the Board in the applicable Award are not
satisfied prior to the end of the applicable Restricted Period or Restricted
Periods established by the Board for such Award. Conditions for repurchase (or
forfeiture) may be based on continuing employment or service or achievement of
pre-established performance or other goals and objectives.
-8-
<PAGE>
(b) Shares of Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered, except as permitted by the Board,
during the applicable Restricted Period. Shares of Restricted Stock shall be
evidenced in such manner as the Board may determine. Any certificates issued in
respect of shares of Restricted Stock shall be registered in the name of the
Participant and, unless otherwise determined by the Board, deposited by the
Participant, together with a stock power endorsed in blank, with the Company (or
its designee). At the expiration of the Restricted Period, the Company (or such
designee) shall deliver such certificates to the Participant or if the
Participant has died, to the Participant's Designated Beneficiary.
(c) The Board may, in its sole discretion, grant (or sell at a
purchase price determined by the Board, which shall not be lower than 85% of
Fair Market Value on the date of sale) to Participants shares of Stock free of
any restrictions under the Plan ("Unrestricted Stock").
(d) The purchase price for each share of Restricted Stock and
Unrestricted Stock shall be determined by the Board of Directors and may not be
less than the par value of the Common Stock. Such purchase price may be paid in
the form of past services or such other lawful consideration as is determined by
the Board.
(e) The Board may at any time accelerate the expiration of the
Restricted Period applicable to all, or any particular, outstanding shares of
Restricted Stock.
Section 10. General Provisions Applicable to Awards
---------------------------------------
(a) Applicability of Rule 16b-3. Those provisions of the Plan
---------------------------
which make an express reference to Rule 16b-3 shall apply to the Company only at
such time as the Company's Common Stock is registered under the Securities
Exchange Act of 1934, or any successor provision, and then only to Reporting
Persons.
(b) Reporting Person Limitations. Notwithstanding any other
----------------------------
provision of the Plan, to the extent required to qualify for the exemption
provided by Rule 16b-3, (i) any Option, SAR, Performance Share Award or other
similar right related to an equity security issued under the Plan to a Reporting
Person shall not be transferable other than by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined by
the Code or Title I or the Employee Retirement Income Security Act ("ERISA"), or
the rules thereunder, and shall be exercisable during the Participant's lifetime
only by the Participant or the Participant's guardian or legal representative,
and (ii) the selection of a Reporting Person as a Participant and the terms of
his or her Award shall be determined only in accordance with the applicable
provisions of Rule 16b-3.
-9-
<PAGE>
(c) Documentation. Each Award under the Plan shall be evidenced
-------------
by an instrument delivered to the Participant specifying the terms and
conditions thereof and containing such other terms and conditions not
inconsistent with the provisions of the Plan as the Board considers necessary or
advisable. Such instruments may be in the form of agreements to be executed by
both the Company and the Participant, or certificates, letters or similar
documents, acceptance of which will evidence agreement to the terms thereof and
of this Plan.
(d) Board Discretion. Each type of Award may be made alone, in
----------------
addition to or in relation to any other type of Award. The terms of each type
of Award need not be identical, and the Board need not treat Participants
uniformly. Except as otherwise provided by the Plan or a particular Award, any
determination with respect to an Award may be made by the Board at the time of
award or at any time thereafter.
(e) Termination of Status. Subject to the provisions of Section
---------------------
6(b)(iv), the Committee shall determine the effect on an Award of the
disability, death, retirement, authorized leave of absence or other termination
of employment or other status of a Participant and the extent to which, and the
period during which, the Participant's legal representative, guardian or
Designated Beneficiary may exercise rights under such Award.
(f) Mergers, Etc. In the event of a consolidation, merger or
------------
other reorganization in which all of the outstanding shares of Common Stock are
exchanged for securities, cash or other property of any other corporation or
business entity (as "Acquisition") or in the event of a liquidation of the
Company, the Board of Directors of the Company, or the board of directors of any
corporation assuming the obligations of the Company, may, in its discretion,
take any one or more of the following actions as to outstanding Awards: (i)
provide that such Awards shall be assumed, or substantially equivalent Awards
shall be substituted, by the acquiring or succeeding corporation (or an
affiliate thereof) on such terms as the Board determines to be appropriate, (ii)
upon written notice to Participants, provide that all unexercised Options or
SARs will terminate immediately prior to the consummation of such transaction
unless exercised by the Participant within a specified period following the date
of such notice, (iii) in the event of an Acquisition under the terms of which
holders of the Common Stock of the Company will receive upon consummation
thereof a cash payment for each share surrendered in the Acquisition (the
"Acquisition Price"), make or provide for a cash payment to Participants equal
to the difference between (A) the Acquisition Price times the number of shares
of Common Stock subject to outstanding Options or SARs (to the extent then
exercisable at prices not in excess of the Acquisition Price) and (B) the
aggregate exercise price of all such outstanding Options or SARs in exchange for
the termination of such Options and SARs, and (iv) provide that all or any
outstanding Awards shall become exercisable or realizable in full prior to the
effective date of such Acquisition.
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<PAGE>
(g) Withholding. The Participant shall pay to the Company, or
-----------
make provision satisfactory to the Board for payment of, any taxes required by
law to be withheld in respect of Awards under the Plan no later than the date of
the event creating the tax liability. In the Board's discretion, and subject to
such conditions as the Board may establish, such tax obligations may be paid in
whole or in part in shares of Common Stock, including shares retained from the
Award creating the tax obligation, valued at their Fair Market Value. The
Company may, to the extent permitted by law, deduct any such tax obligations
from any payment of any kind otherwise due to the Participant.
(h) Foreign Nationals. Awards may be made to Participants who
-----------------
are foreign nationals or employed outside the United States on such terms and
conditions different from those specified in the Plan as the Board considers
necessary or advisable to achieve the purposes of the Plan or comply with
applicable laws.
(i) Amendment of Award. The Board may amend, modify or
------------------
terminate any outstanding Award, including substituting therefor another Award
of the same or a different type, changing the date of exercise or realization
and converting an Incentive Stock Option to a Nonstatutory Stock Option,
provided that the Participant's consent to such action shall be required unless
the Board determines that the action, taking into account any related action,
would not materially and adversely affect the Participant.
(j) Cancellation and New Grant of Options. The Board of
-------------------------------------
Directors shall have the authority to effect, at any time and from time to time,
with the consent of the affected optionees, (i) the cancellation of any or all
outstanding Options under the Plan and the grant in substitution therefor of new
Options under the Plan covering the same or different numbers of shares of
Common Stock and having an option exercise price per share which may be lower or
higher than the exercise price per share of the cancelled Options or (ii) the
amendment of the terms of any and all outstanding Options under the Plan to
provide an option exercise price per share which is higher or lower than the
then current exercise price per share of such outstanding Options.
(k) Conditions on Delivery of Stock. The Company will not be
-------------------------------
obligated to deliver any shares of Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan (i) until all
conditions of the Award have been satisfied or removed, (ii) until, in the
opinion of the Company's counsel, all applicable federal and state laws and
regulations have been complied with, (iii) if the outstanding Stock is at the
time listed on any stock exchange, until the shares to be delivered have been
listed or authorized to be listed on such exchange upon official notice of
notice of issuance, and (iv) until all other legal matters in connection with
the issuance and delivery of such shares have been approved by the Company's
counsel. If the sale of Stock has not been registered under the Securities Act
of 1933,
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<PAGE>
as amended, the Company may require, as a condition to exercise of the Award,
such representations or agreements as the Company may consider appropriate to
avoid violation of such Act and may require that the certificates evidencing
such Stock bear an appropriate legend restricting transfer.
Section 11. Miscellaneous
-------------
(a) No Right To Employment or Other Status. No person shall
--------------------------------------
have any claim or right to be granted an Award, and the grant of an Award shall
not be construed as giving a Participant the right to continued employment or
service for the Company. The Company expressly reserves the right at any time to
dismiss a Participant free from any liability or claim under the Plan, except as
expressly provided in the applicable Award.
(b) No Rights As Stockholder. Subject to the provisions of the
------------------------
applicable Award, no Participant or Designated Beneficiary shall have any rights
as a stockholder with respect to any shares of Common Stock to be distributed
under the Plan until he or she becomes the record holder thereof.
(c) Exclusion from Benefit Computations. No amounts payable upon
-----------------------------------
exercise of Awards granted under the Plan shall be considered salary, wages or
compensation to Participants for purposes of determining the amount or nature of
benefits that Participants are entitled to under any insurance, retirement or
other benefit plans or programs of the Company.
(d) Effective Date and Term. Subject to the approval of the
-----------------------
stockholders of the Company, the Plan shall be effective on June 23, 1992.
Prior to such approval, Awards may be made under the Plan expressly subject to
such approval. No Award may be made under the Plan after June 23, 2002, but
Awards previously granted may extend beyond that date.
(e) Amendment of Plan. The Board may amend, suspend or
-----------------
terminate the Plan or any portion thereof at any time, provided that no
amendment shall be made without stockholder approval if such approval is
necessary to comply with any applicable tax or regulatory requirement, including
any requirements for compliance with Rule 16b-3. Prior to any such approval,
Awards may be made under the Plan expressly subject to such approval.
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<PAGE>
(f) Governing Law. The provisions of the Plan shall be
-------------
governed by and interpreted in accordance with the laws of the Commonwealth of
Massachusetts.
Adopted by the Board of Directors
on June 23, 1992
Approved by the Stockholders
on July 24, 1992
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<PAGE>
AMENDMENTS TO THE 1992 STOCK INCENTIVE PLAN
OF BANYAN SYSTEMS INCORPORATED
Subsection 5(a) of the 1992 Stock Incentive Plan (the "Plan") of
Banyan Systems Incorporated is hereby amended, subject to stockholder approval,
to increase from 1,000,000 to 1,850,000 the number of shares of Common Stock
authorized for issuance under the Plan.
Subsection 6(a)(i) of the Plan is hereby amended and restated in its
entirety, subject to stockholder approval, to provide as follows:
(i) Subject to the provisions of the Plan, the Board may award
Incentive Stock Options and Nonstatutory Stock Options, and determine the number
of shares to be covered by each Option, the option price therefor and the
conditions and limitations applicable to the exercise of the Option. The terms
and conditions of Incentive Stock Options shall be subject to and comply with
Section 422 of the Code, or any successor provisions, and any regulations
thereunder. Subject to adjustment as provided in Subsection 5(b) above, the
maximum number of shares with respect to which Options may be granted to any
employee under the Plan shall not exceed 300,000 shares of Common Stock during
any two consecutive calendar year period. For purposes of calculating such
maximum number, (a) an Option shall continue to be treated as outstanding
notwithstanding its repricing, cancellation or expiration and (b) the repricing
of an outstanding Option or the issuance of a new Option in substitution for a
cancelled Option shall be deemed to constitute the grant of a new additional
Option separate from the original grant of the Option that is repriced or
cancelled.
Adopted by the Board of Directors
on March 28, 1994
Approved by the Stockholders on
May 9, 1994
<PAGE>
AMENDMENT NO. 2 TO THE 1992 STOCK INCENTIVE PLAN
OF BANYAN SYSTEMS INCORPORATED
Subsection 5(a) of the 1992 Stock Incentive Plan (the "Plan") of
Banyan Systems Incorporated is hereby amended, subject to stockholder approval,
to increase from 1,850,000 to 2,700,000 the number of shares of Common Stock
authorized for issuance under the Plan.
Adopted by the Board of Directors
on February 2, 1995
Approved by the Stockholders
on May 9, 1995
<PAGE>
AMENDMENT NO. 3 TO THE 1992 STOCK INCENTIVE PLAN
OF BANYAN SYSTEMS INCORPORATED
The definition of "Committee" contained in Subsection 2 of the 1992
Stock Incentive Plan (the "Plan") of Banyan Systems Incorporated is hereby
amended and restated in its entirety to read as follows"
"'Committee' means a committee of not less than two members of the
Board appointed by the Board to administer the Plan, provided that if and when
the Common Stock is registered under the Section 12 of the Securities Exchange
Act of 1934, each member of the Committee shall be a 'Non-Employee Director,' as
such term is defined in Rule 16b-3 under the Securities Act of 1934 ("Rule 16b-
3"), and an 'Outside Director,' as such term is defined in the Code."
Adopted by the Board of Directors
on January 17, 1997
<PAGE>
AMENDMENT NO. 4 TO THE 1992 STOCK INCENTIVE PLAN
OF BANYAN SYSTEMS INCORPORATED
Subsection 5(a) of the 1992 Stock Incentive Plan, as amended (the
"Plan"), of Banyan Systems Incorporated is hereby amended, subject to
stockholder approval, to increase from 2,700,000 to 3,500,000 the number of
shares of Common Stock, $.01 par value per share, authorized for issuance under
the Plan.
Adopted by the Board of Directors
on February 11, 1998
Approved by the Stockholders
on May 12, 1998
<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 27, 1998,
except as to the information presented in Note Q for which the date is March 6,
1998, on our audits of the consolidated financial statements and financial
statement schedule of Banyan Systems Incorporated as of December 31, 1997 and
1996, and for each of the three years in the period ended December 31, 1997,
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, 1997.
/s/ Coopers & Lybrand L.L.P.
-----------------------------------
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
May 27, 1998
