<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
(State or Other Jurisdiction of Incorporation or Organization)
04-2798394
(I.R.S. Employer Identification Number)
120 FLANDERS ROAD, WESTBORO, MASSACHUSETTS 01581
(Address of Principal Executive Offices) (Zip Code)
NON-QUALIFIED STOCK OPTION
(Full Title of the Plan)
MARK G. BORDEN, ESQ.
HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(Name and Address of Agent for Service)
(617) 526-6000
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================
Title Of Proposed Proposed
Securities Amount Maximum Maximum
To Be To Be Offering Aggregate Amount Of
Registered Registered Price Per Share Offering Price Registration Fee
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 150,000 shares 12.375 (1) 1,856,250 (1) $516.04
$.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 the Rules
457(c) and 457(h) of the Securities Act of 1933.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in
documents sent or given to the recipient of the Non-Qualified Stock Option from
Banyan Systems Incorporated (the "Registrant") pursuant to Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and in accordance therewith files reports,
proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are filed with the
Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to Sections
13(a) or 15(d) of the Exchange Act, or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the annual
report or the prospectus referred to in (1) above.
(3) The description of the common stock of the Registrant, $.01 par
value per share (the "Common Stock"), contained in a Registration Statement
filed under Section 12 of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
II-1
<PAGE>
Not applicable.
Item 6. Indemnification
---------------
Section 67 of Chapter 156B of the Massachusetts General Laws ("Section
67") provides that a corporation may indemnify its directors and officers to the
extent specified in or authorized by (i) the articles of organization, (ii) a
by-law adopted by the stockholders, or (iii) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election of directors.
In all instances, the extent to which a corporation provides indemnification to
its directors and officers under Section 67 is optional. In its Second Amended
and Restated Articles of Organization the Registrant has elected to commit to
provide indemnification to its directors and officers in specified
circumstances. Generally, Article 6 of the Registrant's Second Amended and
Restated Articles of Organization indemnifies directors and officers of the
Registrant against liabilities and expenses arising out of legal proceedings
brought against them by reason of their status or service as directors or
officers or by reason of their agreeing to serve, at the request of the
Registrant, as a director or officer of, or in a similar capacity with, another
organization or in any capacity with respect to any employee benefit plan of the
Registrant. Under this provision, a director or officer of the Registrant shall
be indemnified by the Registrant for all expenses, judgments, fines and amounts
paid in settlement of such proceedings, even if he or she is not successful on
the merits, if he or she acted in good faith and in a manner he or she
reasonably believed to be in the best interests of the Registrant.
The Registrant's Second Amended and Restated Articles of Organization
establish the presumption that the director or officer has met the applicable
standard of conduct required for indemnification. The indemnification above
shall be made unless the Registrant determines, by clear and convincing
evidence, that the applicable standard of conduct has not been met. Such a
determination may be made by a majority of a quorum of the directors,
independent legal counsel, the stockholders, or a court of competent
jurisdiction. The Board of Directors shall authorize advancing litigation
expenses to a director or officer at his request upon receipt of an undertaking
by such director or officer to repay such expenses if it is ultimately
determined that he or she is not entitled to indemnification for such expenses.
The Registrant's Second Amended and Restated Articles of Organization
also provide that, in the event of a determination by the Registrant that a
director or officer did not meet the standard of conduct required for
indemnification, or if the Registrant fails to make an indemnification payment
or an advance of expenses within 60 days after such payment is claimed by a
director or officer, such director or officer may petition a court to make an
independent determination of whether such director or officer is entitled to
indemnification. The Registrant's Second Amended and Restated Articles of
Organization explicitly provide for partial indemnification of costs and
expenses in the event that a director of officer is not entitled to full
indemnification.
II-2
<PAGE>
Article 6 of the Registrant's Second Amended and Restated Articles of
Organization also eliminates the personal liability of the Registrant's
directors to the Registrant or its stockholders for monetary damages for breach
of a director's fiduciary duty, except to the extent Chapter 156B of the
Massachusetts General Laws prohibits the elimination or limitation of such
liability.
The Registrant has purchased a general liability insurance policy
which covers certain liabilities of directors and officers of the Registrant
arising out of claims based on acts or omissions in their capacity as directors
or officers.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings
------------
1. The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
2. The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be in the initial bona fide offering thereof.
II-3
<PAGE>
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforce able. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Westboro, Commonwealth of Massachusetts on this 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.
II-5
<PAGE>
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
----------- -----
/s/ William P. Ferry Chairman of the Board, May 14, 1999
- ---------------------------- President and Chief
William P. Ferry 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 of the Registrant
5 Opinion of Hale and Dorr LLP
10 Non-Qualified Stock Option Agreement dated February 1, 1999 granted by
the Registrant to Scott Silk.
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, MA 01581
Re: Non-Qualified Stock Option
--------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") relating to 150,000 shares of Common Stock, $.01
par value per share (the "Shares"), of Banyan Systems Incorporated, a
Massachusetts corporation (the "Company"), issuable pursuant to a non-qualified
stock option granted by the Company to a certain optionee pursuant to a written
employment agreement executed between the Company and such optionee (the "Non-
Qualified Option").
We have examined the Second Amended and Restated Articles of Organization
of the Company, the By-Laws of the Company, as amended, and originals, or copies
certified to our satisfaction, of all pertinent records of the meetings of the
directors and stockholders of the Company, the Registration Statement and such
other documents relating to the Company as we have deemed material for the
purposes of this opinion.
In examination of the foregoing documents, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified, photostatic or facsimile copies, the authenticity of the originals
of such latter documents and the legal competence of all signatories to such
documents.
We assume that the appropriate action will be taken, prior to the offer and
sale of the shares in accordance with the Non-Qualified Option, to register and
qualify the shares for sale under all applicable state securities or "blue sky"
laws.
<PAGE>
Banyan Systems Incorporated
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 Non-Qualified Option, 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 1993, 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
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
1. GRANT OF OPTION. Banyan Systems Incorporated, a Massachusetts
---------------
corporation (the "Company"), hereby grants to SCOTT SILK (the "Optionee") an
----------
option, pursuant to the terms (which such terms to the extent not inconsistent
with the terms hereof, are incorporated herein) of, but not under, the Company's
1992 Stock Incentive Plan (the "Plan") to purchase an aggregate of 150,000
-------
shares of Common Stock ("Common Stock") of the Company at a price of $12.00 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 FEBRUARY 1, 1999.
----------------
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 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.
NUMBER OF SHARES AS TO
Exercise Period WHICH OPTION IS EXERCISABLE
--------------- ---------------------------
From and after 12 months
after the date of grant but 57,500
prior to the Expiration Date
From and after 24 months
after the date of grant but 57,500
prior to the Expiration Date
From and after 36 months
after the date of grant but 17,500
prior to the Expiration Date
From and after 48 months
after the date of grant but 17,500
prior to the Expiration Date.
b. Change in Control. Upon the occurrence of a Change in Control, as
-----------------
defined in the Employment Agreement dated January 15, 1999 herewith between the
Company
<PAGE>
and the Employee (the "Employment Agreement"), 50% of the issued but unvested
non-qualified stock options will become fully vested and immediately available
for exercise in accordance with the applicable terms and conditions of Banyan's
1992 Stock Incentive Plan.
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.
d. 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.
e. 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").
f. 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
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. If
the Optionee terminates due to an occurence of any "Change or Material Reduction
of Responsibilities" and upon 30 days prior written notice to Banyan vesting of
unvested non-qualified stock options will continue for nine months from the
effective date of termination. 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.
g. 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
Page 2
<PAGE>
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.
h. 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 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.
--------------------------------------------------------
Page 3
<PAGE>
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.
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
Page 4
<PAGE>
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. Subject to
--------------------------------------------------------
the provisions of Section 3(b) above, 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 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.
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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: /s/RICHARD M. SPAULDING
--------------------------
Richard M. Spaulding
Title: Vice President Finance and Treasurer
Address: 120 Flanders Road
Westboro, Massachusetts 01581
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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: ________________________
________________________
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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 Non-Qualfied Stock Option 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
