<PAGE>
As filed with the Securities and Exchange Commission
on May 14, 1999
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, 01581
MASSACHUSETTS (Zip Code)
(Address of Principal Executive
Offices)
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)
<TABLE>
<CAPTION>
===================================================================================================
CALCULATION OF REGISTRATION FEE
===================================================================================================
TITLE OF SECURITIES AMOUNT TO PROPOSED PROPOSED AMOUNT OF
TO BE REGISTERED BE MAXIMUM MAXIMUM REGISTRATION FEE
REGISTERED OFFERING PRICE AGGREGATE
PER SHARE OFFERING PRICE
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 950,000 12.375 (1) 11,756,250 (1) $ 3,268.24
$.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 10, 1999 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 14th day of May, 1999.
BANYAN SYSTEMS INCORPORATED
By: /s/ William P. Ferry
--------------------
William P. Ferry
Chairman of the Board
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.
Signature Title Date
--------- ----- ----
/s/ William P. Ferry Chairman of the May 14, 1999
- ---------------------------- Board, President and
William P. Ferry Chief Executive Officer
(Principal Executive
Officer)
/s/ Richard M. Spaulding Vice President, Chief May 14, 1999
- ---------------------------- Financial Officer,
Richard M. Spaulding Treasurer and Clerk
(Principal Financial
Officer and Principal
Accounting Officer)
/s/ G. Leonard Baker, Jr. Director May 14, 1999
- ----------------------------
G. Leonard Baker, Jr.
/s/ John F. Burton Director May 14, 1999
- ----------------------------
John F. Burton
/s/ David C. Mahoney Director May 14, 1999
- ----------------------------
David C. Mahoney
/s/ Fontaine K. Richardson Director May 14, 1999
- ----------------------------
Fontaine K. Richardson
/s/ David N. Strohm Director May 14, 1999
- ----------------------------
David N. Strohm
/s/ Robert M. Wadsworth Director May 14, 1999
- ----------------------------
Robert M. Wadsworth
<PAGE>
Exhibit Index
-------------
Exhibit
Number Description
- ------- -----------
4(1) Specimen Certificate for shares of Common Stock, $.01 par
value per share, of the Registrant
5 Opinion of Hale and Dorr LLP
10.1 1992 Stock Incentive Plan, as amended
10.2 Form of Incentive Stock Option for grant under the 1992 Stock
Incentive Plan, as amended
10.3 Form of Non-Qualified Stock Option for grant under the 1992 Stock
Incentive Plan, as amended
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
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
May 14, 1999
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 950,000 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 or photostatic copies, and the authenticity of the originals
of such latter 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.
<PAGE>
Banyan Systems Incorporated
May 14, 1999
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 and such Shares, when
issued and paid for in accordance with the terms of the Plan and for a
consideration in excess of par value per share, 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 10.1
------------
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
--------
agreement 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.
-10-
<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,
-11-
<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.
-12-
<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
-13-
<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>
AMENDMENT NO. 5 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 3,500,000 to 4,450,000 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 March 4, 1999
Approved by the Stockholders
on May 13, 1999
<PAGE>
EXHIBIT 10.2
------------
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
1. GRANT OF OPTION. Banyan Systems Incorporated, a Massachusetts
----------------
corporation (the "Company"), hereby grants to *NAME* (the "Optionee"), an
------
option, pursuant to the Company's 1992 Stock Incentive Plan (the "Plan"), to
purchase an aggregate of *NO* shares of Common Stock ("Common Stock") of the
----
Company at a price of $*DOLLAR* per share, purchasable as set forth in and
--------
subject to the terms and conditions of this option and the Plan. The date of
grant of this option is *DATE*. Except where the context otherwise requires,
------
the term "Company" shall include the parent and all present and future
subsidiaries of the Company as defined in Sections 424 (e) and 424 (f) of the
Internal Revenue Code of 1986, as amended or replaced from time to time (the
"Code").
2. INCENTIVE STOCK OPTION. This option is intended to qualify as an
-----------------------
incentive stock option ("Incentive Stock Option") within the meaning of Section
422 of the Code.
3. EXERCISE OF OPTION AND PROVISIONS FOR TERMINATION.
--------------------------------------------------
(a) Vesting Schedule. Except as otherwise provided in this Agreement,
-----------------
this option may be exercised prior to the tenth anniversary of the date of grant
(hereinafter the "Expiration Date") in installments as to not more than the
number of shares set forth in the table below during the respective installment
periods set forth in the table below.
PERCENTAGE OF SHARES AS TO
EXERCISE PERIOD WHICH OPTION IS EXERCISABLE
--------------- ---------------------------
Prior to 12 months after -0-
the date of grant.
From and after 12 months -34%-
after the date of grant but
prior to 24 months after
the date of grant.
From and after 24 months -67%-
after the date of grant but
prior to 36 months after the
date of grant.
From and after 36 months -100%-
after the date of grant
but prior to 48 months
after the date of grant.
<PAGE>
The right of exercise shall be cumulative so that if the option is not exercised
to the maximum extent permissible during any exercisable period, it shall be
exercisable, in whole or in part, with respect to all shares not so purchased at
any time prior to the Expiration Date or the earlier termination of this option.
This option may not be exercised at any time on or after the Expiration Date.
(b) Exercise Procedure. Subject to the conditions set forth in this
------------------
Agreement, this option shall be exercised by the Optionee's delivery of written
notice of exercise to the Treasurer of the Company, specifying the number of
shares to be purchased and the purchase price to be paid therefor and
accompanied by payment in full in accordance with Section 4. Such exercise
shall be effective upon receipt by the Treasurer of the Company of such written
notice together with the required payment. The Optionee may purchase less than
the number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share or for fewer than ten whole shares.
(c) Continuous Employment Required. Except as otherwise provided in
------------------------------
this Section 3, this option may not be exercised unless Optionee, at the time he
or she exercises this option, is, and has been at all times since the date of
grant of this option, an employee of the Company. For all purposes of this
option, (i) "employment" shall be defined in accordance with the provisions of
Section 1.421-7 (h) of the Income Tax Regulations or any successor regulations,
and (ii) if this option shall be assumed or a new option substituted therefor in
a transaction to which Section 424 (a) of the Code applies, employment by such
assuming or substituting corporation (hereinafter called the "Successor
Corporation") shall be considered for all purposes of this option to be
employment by the Company.
(d) Exercise Period Upon Termination of Employment. If the Optionee
----------------------------------------------
ceases to be employed by the Company for any reason, then, except as provided in
paragraphs (e) and (f) below, the right to exercise this option shall terminate
three months after such cessation (but in no event after the Expiration Date),
provided that this option shall be exercisable only to the extent that the
- -------- ----
Optionee was entitled to exercise this option on the date of such cessation.
The Company's obligation to deliver shares upon the exercise of this option
shall be subject to the satisfaction of all applicable federal, state and local
income and employment tax withholding requirements, arising by reason of this
option being treated as a non-statutory option or otherwise. Notwithstanding
the foregoing, if the Optionee, prior to the Expiration Date, materially
violates the non-competition or confidentiality provisions of any employment
contract, confidentiality and nondisclosure agreement or other agreement between
the Optionee and the Company, the right to exercise this option shall terminate
immediately upon written notice to the Optionee from the Company describing such
violation.
(e) Exercise Period Upon Death or Disability. If the Optionee dies or
-----------------------------------------
becomes disabled (within the meaning of Section 22 (e) (3) of the Code) prior to
the Expiration Date while he or she is an employee of the Company, or if the
Optionee dies within three months after the Optionee ceases to be an employee of
the Company (other than as a result of a discharge for "cause" as specified in
paragraph (f) below), this option shall be exercisable, within the period of one
year following the date of death or disability of the Optionee (but in no event
after the Expiration Date), by the Optionee or by the person to whom this option
is transferred by will or the laws of descent and distribution, provided that
-------- ----
this option shall be exercisable only to the extent that this option was
exercisable by the Optionee on the date of his or her death or disability.
Except as otherwise indicated by the context, the term "Optionee", as used in
this option, shall be deemed to include the estate of the Optionee or any person
who acquires the right to exercise this option by bequest or inheritance or
otherwise by reason of the death of the Optionee.
<PAGE>
(f) Discharge for Cause. If the Optionee, prior to the Expiration
--------------------
Date, is discharged by the Company for "cause" (as defined below), the right to
exercise this option shall terminate immediately upon such cessation of
employment. "Cause" shall mean willful misconduct in connection with the
Optionee's employment or willful failure to perform his or her employment
responsibilities in the best interests of the Company (including, without
limitation, breach by the Optionee of any provision of any employment,
nondisclosure, non-competition or other similar agreement between the Optionee
and the Company), as determined by the Company, which determination shall be
conclusive. The Optionee shall be considered to have been discharged "for
cause" if the Company determines, within 30 days after the Optionee's
resignation, that discharge for cause was warranted.
4. PAYMENT OF PURCHASE PRICE.
-------------------------
(a) Method of Payment. Payment of the purchase price for shares
------------------
purchased upon exercise of this option shall be made by delivery of cash or
check in an amount equal to the exercise price of such options or, with the
prior consent of the Company (which may be withheld in its sole discretion), by
(A) delivery of shares of Common Stock owned by the Optionee for at least six
months, valued at their fair market value, as determined in (b) below, (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.
(b) Valuation of Shares or Other Non-Cash Consideration Tendered in
---------------------------------------------------------------
Payment of Purchase Price. For the purposes hereof, the fair market value of
- --------------------------
any share of the Company's Common Stock or other non-cash consideration which
may be delivered to the Company in exercise of this option shall be determined
in good faith by the Board of Directors of the Company.
(c) Delivery of Shares Tendered in Payment of Purchase Price. If the
--------------------------------------------------------
Optionee exercises options by delivery of shares of Common Stock of the Company,
the certificate or certificates representing the shares of Common Stock of the
Company to be delivered shall be duly executed in blank by the Optionee or shall
be accompanied by a stock power duly executed in blank suitable for purposes of
transferring such shares to the Company. Fractional shares of Common Stock of
the Company will not be accepted in payment of the purchase price of shares
acquired upon exercise of this option.
(d) Restrictions on Use of Option Stock. Notwithstanding the
-----------------------------------
foregoing, no shares of Common Stock of the Company may be tendered in payment
of the purchase price of shares purchased upon exercise of this option if the
shares to be so tendered were acquired within six (6) months before the date of
such tender, through the exercise of an option granted under the Plan or any
other stock option or restricted stock plan of the Company.
5. DELIVERY OF SHARES; COMPLIANCE WITH SECURITIES LAWS, ETC.
---------------------------------------------------------
(a) General. The Company shall, upon payment of the option price for
-------
the number of shares purchased and paid for, make prompt delivery of such shares
to the Optionee, provided that if any law or regulation requires the Company to
-------- ----
take any action with respect to such shares before the issuance thereof, then
the date of delivery of such shares shall be extended for the period necessary
to complete such action.
<PAGE>
(b) Compliance With Securities Laws, Etc. The Company will not be
------------------------------------
obligated to deliver any shares of Common Stock pursuant to the Plan or to
remove restriction from shares previously delivered under the Plan (i) until all
conditions of the option have been satisfied or removed, (ii) until, in the
opinion of the Company's counsel, all applicable federal and state laws and
regulation 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.
6. NONTRANSFERABILITY OF OPTION. Except as provided in paragraph (e) of
----------------------------
Section 3, this Option is personal and no rights granted hereunder may be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) nor shall any such rights be subject to execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of this option or of such rights contrary to
the provisions hereof, or upon the levy of any attachment or similar process
upon this option or such rights, this option and such rights shall, at the
election of the Company, become null and void.
7. NO SPECIAL EMPLOYMENT RIGHTS. Nothing contained in the Plan or this
----------------------------
option shall be construed or deemed by any person under any circumstances to
bind the Company to continue the employment of the Optionee for the period
within which this option may be exercised.
8. RIGHTS AS A SHAREHOLDER. The Optionee shall have no rights as a
-----------------------
shareholder with respect to any shares which may be purchased by exercise of
this option (including, without limitation, any rights to receive dividends or
non-cash distributions with respect to such shares) unless and until a
certificate representing such shares is duly issued and delivered to the
Optionee. No adjustment shall be made for dividends or other rights for which
the record date is prior to the date such stock certificate is issued.
9. ADJUSTMENT PROVISIONS.
---------------------
(a) General. 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 (an "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 this option: (I) provide
that this option shall be assumed, or a substantially equivalent option 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 the Optionee, provide that if unexercised, this option will
terminate immediately prior to the consummation of such transaction unless
exercised by the Optionee 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 the Optionee equal to the difference
between (A) the Acquisition Price times the number of shares of Common Stock
subject to outstanding options (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 in exchange for the termination of such options, and
(iv) provide that all or any outstanding options shall become exercisable or
realizable in full prior to the effective date of such Acquisition.
<PAGE>
(b) Board Authority to Make Adjustments. Any adjustments under this
-----------------------------------
Section 9 will be made by the Board of Directors, whose determination as to what
adjustments, if any, will be made and the extent thereof will be final, binding
and conclusive. No fractional shares will be issued pursuant to this option on
account of any such adjustments.
10. WITHHOLDING TAXES. The Company's obligation to deliver shares upon
-----------------
the exercise of this option shall be subject to the Optionee's satisfaction of
all applicable federal, state and local income and employment tax withholding
requirements. The Optionee 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 options under the Plan no later than the date of the
event creating the tax liability. In the Board's discretion, and subject to the
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 option
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 Optionees.
11. LIMITATIONS ON DISPOSITION OF INCENTIVE STOCK OPTION SHARES. It is
------------------------------------------------------------
understood and intended that this option shall qualify as an "incentive stock
option" as defined in Section 422 of the Code. Accordingly, the Optionee
understands that in order to obtain the benefits of an incentive stock option
under Section 421 of the Code, no sale or other disposition may be made of any
shares acquired upon exercise of the option within one year after the day of the
transfer of such shares to him, nor within two years after the grant of the
option. If the Optionee intends to dispose, or does dispose (whether by sale,
exchange, gift, transfer or otherwise), of any such shares within said periods,
he or she will notify the Company in writing within ten days after such
disposition.
12. MISCELLANEOUS.
-------------
(a) The Board may amend, modify or terminate any outstanding option,
including substituting therefor another option of the same or a different type,
changing the date of exercise or realization, provided that the Optionee'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 Optionee. The Board may at any time accelerate the time at
which all or any part of an Option may be exercised.
(b) All notices under this option shall be mailed or delivered by hand
to the parties at their respective addresses set forth beneath their names below
or at such other address as may be designated in writing by either of the
parties to one another.
(c) This option shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
BANYAN SYSTEMS INCORPORATED
BY:
___________________________________
Richard M. Spaulding
Title: Vice President, Chief Financial
Address: 120 Flanders Road
Westboro, Massachusetts 01581
<PAGE>
OPTIONEE'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and
conditions thereof. The undersigned hereby acknowledges receipt of a copy of
the Company's 1992 Stock Incentive Plan and the Prospectus for such plan.
OPTIONEE
_________________________________
Address: __________________________
__________________________
<PAGE>
EXHIBIT 10.3
BANYAN SYSTEMS INCORPORATED
1992 STOCK INCENTIVE PLAN
NON-STATUTORY STOCK OPTION AGREEMENT
------------------------------------
1. GRANT OF OPTION. Banyan Systems Incorporated, a Massachusetts
----------------
corporation (the "Company"), hereby grants to *NAME* (the "Optionee") an
------
option, pursuant to the Company's 1992 Stock Incentive Plan (the "Plan"), to
purchase an aggregate of *NO* shares of Common Stock ("Common Stock") of the
----
Company at a price of $*$* per share, purchasable as set forth in and subject to
----
the terms and conditions of this option and the Plan. The date of grant of this
option is *DATE*. Except where the context otherwise requires, the term
"Company" shall include the parent and all present and future subsidiaries of
the Company as defined in Sections 424 (e) and 424 (f) of the Internal Revenue
Code of 1986, as amended or replaced from time to time (The "Code").
2. NON-STATUTORY STOCK OPTION. This option is not intended to qualify as
---------------------------
an incentive stock option within the meaning of Section 422 of the Code.
3. EXERCISE OF OPTION AND PROVISIONS FOR TERMINATION.
--------------------------------------------------
a. Vesting Schedule. Except as otherwise provided in this Agreement, this
-----------------
option may be exercised prior to the *no* anniversary of the date of grant
----
(hereinafter the "Expiration Date") in installments as to not more than the
number of shares set forth in the table below during the respective installment
periods set forth in the table below.
NUMBER OF SHARES AS TO
EXERCISE PERIOD WHICH OPTION IS EXERCISABLE
--------------- ---------------------------
Vesting is variable Depending upon the terms of the option
The right of exercise shall be cumulative so that if the option is not exercised
to the maximum extent permissible during any exercise period, it shall be
exercisable, in whole or in part, with respect to all shares not so purchased at
any time prior to the Expiration Date or the earlier termination of this option.
This option may not be exercised at any time on or after the Expiration Date,
except as otherwise provided in Section 3 (e) below.
b. Exercise Procedure. Subject to the conditions set forth in this
-------------------
Agreement, this option shall be exercised by the Optionee's delivery of written
notice of exercise to the Treasurer of the Company, specifying the number of
shares to be purchased and the purchase price to be paid therefor and
accompanies by payment in full in accordance with Section 4. Such exercise shall
be effective upon receipt by the Treasurer of the Company of such written notice
together with the required payment. The Optionee may purchase less than the
number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share or for fewer than ten whole shares.
<PAGE>
c. Continuous Relationship with the Company Required. Except as
--------------------------------------------------
otherwise provided in this Section 3, this option may not be exercised unless
the Optionee, at the time he or she exercises this option, is, and has been at
all times since the date of grant of this option, an employee, officer or
director of, or consultant or advisor to, the Company (an "Eligible Optionee").
d. Termination of Relationship with the Company. If the Optionee
---------------------------------------------
ceases to be an Eligible Optionee for any reason, then, except as provided in
paragraphs (e) and (f) below, the right to exercise this option shall terminate
3 months after such cessation (but in no event after the Expiration Date),
- -
provided that this option shall be exercisable only to the extent that the
- -------- ----
Optionee was entitled to exercise this option on the date of such cessation.
Notwithstanding the foregoing, if the Optionee, prior to the Expiration Date,
materially violates the non-competition or confidentiality provisions of any
employment contract, confidentiality and nondisclosure agreement or other
agreement between the Optionee and the Company, the right to exercise this
option shall terminate immediately upon written notice to the Optionee from the
Company describing such violation.
e. Exercise Period Upon Death or Disability. If the Optionee dies or
----------------------------------------
becomes disabled (within the meaning of Section 22 (e) (3) of the Code) prior to
the Expiration Date while he or she is an Eligible Employee, or if the Optionee
dies within three months after the Optionee ceases to be an Eligible Optionee
(other than as the result of a termination of such relationship by the Company
for "cause" as specified in paragraph (f) below, this option shall be
exercisable, within the period of one year following the date of death or
disability of the Optionee (whether or not such exercise occurs before the
Expiration Date), by the Optionee or by the person to whom this option is
transferred by will or the laws of descent and distribution, provided that this
-------------
option shall be exercisable only to the extent that this option was exercisable
by the Optionee on the date of his or her death or disability. Except as
otherwise indicated by the context, the term "Optionee", as used in this option,
shall be deemed to include the estate of the Optionee or any person who acquires
the right to exercise this option by bequest or inheritance or otherwise by
reason of the death of the Optionee.
f. Discharge for Cause. If the Optionee, prior to the Expiration
-------------------
Date, ceases his or her relationship with the Company because such relationship
is terminated by the Company for "cause" (as defined below), the right to
exercise this option shall terminate immediately upon such cessation. "Cause"
shall mean willful misconduct by the Optionee or willful failure to perform his
or her responsibilities in the best interests of the Company (including, without
limitation, breach by the Optionee of any provision of any employment,
consulting, advisory, nondisclosure, non-competition or other similar agreement
between the Optionee and the Company), as determined by the Company, which
determination shall be conclusive.
4. PAYMENT OF PURCHASE PRICE.
-------------------------
a. Method of Payment. Payment of the purchase price for shares
-----------------
purchase upon exercise of this option shall be made by delivery of cash or check
in an amount equal to the exercise price of such options or, with the prior
consent of the Company (which may be withheld in its sole discretion), by (A)
delivery of shares of Common Stock owned by the Optionee for at least six
months, valued at their fair market value, as determined pursuant to (b) below,
(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
2
<PAGE>
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.
b. Valuation of Shares or Other Non-Cash Consideration Tendered in
---------------------------------------------------------------
Payment of Purchase Price. For the purchase hereof, the fair market value of
- --------------------------
any share of the Company's Common Stock or other non-cash consideration which
may be delivered to the Company in exercise of this option shall be determined
in good faith or in the manner determined by the Board of Directors of the
Company from time to time.
c. Delivery of Shares Tendered in Payment of Purchase Price. If the
---------------------------------------------------------
Optionee exercises this option by delivery of shares of Common Stock of the
Company, the certificate or certificates representing the shares of Common Stock
of the Company to be delivered shall be duly executed in blank by the Optionee
or shall be accompanies by a stock power duly executed in blank suitable for
purposes of transferring such shares to the Company. Fractional shares of Common
Stock of the Company will not be accepted in payment of the purchase price of
shares acquired upon exercise of this option.
d. Restrictions on Use of Option Stock. Notwithstanding the
------------------------------------
foregoing, no shares of Common Stock of the Company may be tendered in payment
of the purchase price of shares purchased upon exercise of this option is the
shares to be so tendered were acquired within six months before the date of such
tender.
5. DELIVERY OF SHARES; COMPLIANCE WITH SECURITIES LAWS, ETC.
---------------------------------------------------------
a. General. The Company will not be obligated to deliver any shares
-------
of Stock pursuant to the Plan or to remove restriction from shares previously
delivered under the Plan (i) until all conditions of the option 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.
b. Listing, Qualification, etc. This option shall be subject to the
---------------------------
requirements that if, at any time, counsel to the Company shall determine that
the listing, registration or qualification of the shares subject hereto upon any
securities exchange or under any state or federal law, or the consent of
approval of any governmental or regulatory body, or that the disclosure of non-
public information or the satisfaction of any other condition is necessary as a
condition of, or in connection with, the issuance or purchase of shares
hereunder, this option may not be exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval, disclosure or
satisfaction of such other condition shall have been effected or obtained on
terms acceptable to the Board of Directors. Nothing herein shall be deemed to
require the Company to apply for, effect or obtain such listing, registration,
qualification or disclosure, or to satisfy such other condition.
3
<PAGE>
6. NON TRANSFERABILITY OF OPTION. This option is personal and no rights
------------------------------
granted hereunder may be transferred, assigned, pledged or hypothecated in any
way (whether by operation of law or otherwise) nor shall any such rights be
subject to execution, attachment or similar process, except that this option may
be transferred (i) by will or the laws of descent and distribution or (ii)
pursuant to a qualified domestic relations order as defined in Section 414 (p)
of the Code. Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of this option or of such rights contrary to the provisions
hereof, or upon the levy of any attachment or similar process upon this option
or such rights, this option and such rights shall, at the election of the
Company, become null and void.
7. NO SPECIAL EMPLOYMENT OR SIMILAR RIGHTS. Nothing contained in the
----------------------------------------
Plan or this Option shall be construed or deemed by any person under any
circumstances to bind the Company to continue the employment or other
relationship of the Optionee with the Company for the period within which this
option may be exercised. The Company expressly reserves the right at any time
to dismiss the Optionee free from any liability or claim under the Plan, except
as otherwise expressly provided in this Agreement.
8. RIGHTS AS A SHAREHOLDER. The Optionee shall have no rights as a
------------------------
shareholder with respect to any shares which may be purchased by exercise of
this option (including, without limitation, any rights to receive dividends or
non-cash distributions with respect to such shares) unless and until a
certificate representing such shares is duly issued and delivered to the
Optionee. No adjustment shall be made for dividends or other rights for which
the record date is prior to the date such stock certificate is issued.
9. ADJUSTMENT PROVISIONS. 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 shall equitably
adjust either or both (i) the number and kind of shares subject to this option,
and (iii) the award, exercise or conversion price with respect to the foregoing,
and if considered appropriate, the Board may make provision for a cash payment
with respect to this option, provided that the number of shares subject to this
option shall always be a whole number.
10. MERGERS, CONSOLIDATION, DISTRIBUTIONS, LIQUIDATIONS, 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, of 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 this option: (i) provide that this option shall be assumed, or a
substantially equivalent option 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 the Optionee, provide
that if unexercised, this option will terminate immediately prior to the
consummation of such transaction unless exercised by the Optionee 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 the Optionee equal to the difference between (A) the Acquisition Price times
the number of shares of Common
4
<PAGE>
Stock subject to outstanding options (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 in exchange for the termination of such options,
and (iv) provide that all or any outstanding options shall become exercisable or
realizable in full prior to the effective date of such Acquisition.
11. WITHHOLDING TAXES. The Company's obligation to deliver shares upon the
------------------
exercise of this option shall be subject to the Optionee's satisfaction of all
applicable federal, state and local income and employment tax withholding
requirements. The Optionee 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 options 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 option
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 Optionee.
12. MISCELLANEOUS.
--------------
(a) The Board may amend, modify or terminate any outstanding option,
including substituting therefor another option of the same or a different type,
changing the date of exercise or realization, provided that the Optionee'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 Optionee. The Board may at any time accelerate the time at
which all or any part of an Option may be exercised.
(b) All notices under this option shall be mailed or delivered by hand to
the parties at their respective addresses set forth beneath their names below or
at such other address as may be designated in writing by either of the parties
to one another.
(c) This option shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
BANYAN SYSTEMS INCORPORATED
BY: ______________________________
Richard M. Spaulding
Title: ____________________________
Vice President, Chief Financial Officer
ADDRESS: 120 Flanders Road
Westboro, Massachusetts 01581
5
<PAGE>
OPTIONEE'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and
conditions thereof. The undersigned hereby acknowledges receipt of a copy of
the Company's 1992 Stock Incentive Plan.
OPTIONEE
___________________________________
Address: _________________________
_________________________
6
<PAGE>
EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 in connection with the 1992 Stock Incentive Plan of our
report dated January 26, 1999, relating to the financial statements, which
appears in the 1998 Annual Report to Shareholders of Banyan Systems
Incorporated, which is incorporated by reference in Banyan Systems
Incorporated's Annual Report on Form 10-K for the year ended December 31, 1998.
We also consent to the incorporation by reference of our report dated January
26, 1999, relating to the financial statement schedule, which appears in such
Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
-------------------------------------
PricewaterhouseCoopers LLP
Boston, Massachusetts
May 14, 1999
