AMENDMENT NO. 1
TO EMPLOYMENT AGREEMENT
This Amendment No. 1 to Employment Agreement (the "Agreement") made as of
the 4th day of February, 1997 between Banyan Systems Incorporated, a
Massachusetts corporation (the "Company"), and William P. Ferry (the "Employee")
is effective as of the ___ day of June 1997.
The parties hereto agree that the Agreement is hereby amended as follows:
1. Section 3.2 (a) of the Agreement, which relates to the Employee's
"target bonus," is amended to provide that the Company shall pay to the Employee
as soon as reasonably practicable $56,250, representing the difference between
the amount previously paid as bonus to the Employee ($18,750) and the amount
that is the calendar prorated portion through and including the date hereof of
the annual target bonus guarantee of $150,000 per year ($75,000). During the
remainder of 1997, the Company shall pay to the Employee, in bi-weekly
installments, the sum of $75,000, representing the prorated portion of the
remaining amount of such annual target bonus guarantee.
2. The per share exercise price of the stock option granted to the
Employee pursuant to Section 3.3(a) of the Agreement is revised to equal $2.25
per share.
3. The issuance and sale to the Employee of 200,000 shares of Common Stock
of the Company pursuant to Section 3.4(a) of the Agreement is hereby rescinded.
The Employee shall on the date hereof return to the Company for cancellation the
certificate representing such 200,000 shares.
4. The Company shall pay to the Employee as soon as possible a cash bonus
of $400,000, but no later than June 20, 1997.
5. Subject to Section 6 below, on January 2, 1998, the Company shall issue
and sell to the Employee 160,000 shares of Common Stock of the Company
("Restricted Shares"), at a price of $.01 per share, with no restrictions on the
Employee's right to sell or otherwise transfer such shares other than
restrictions under the Securities Act of 1933, as amended (the "Act");
provided,however, that such shares shall only be issued and sold to the
- -------- -------
Employee if the Employee is continuously employed by the Company through and in
cluding January 2, 1998 and the Employee has not, as of such date, announced his
intention to terminate his employment with the Company. If the Employee is
unable, due to restrictions imposed by the Act ("SEC Restrictions"), or
unwilling to sell a sufficient number of Restricted Shares to satisfy his
federal and state tax obligations with respect to the issuance to him of the
Restricted Shares (including his obligation to pay to the Company any
withholding taxes upon such issuance), the Company shall lend to the Employee
such amounts as are necessary to satisfy such obligations. Such loans shall bear
no interest until the SEC Restrictions, if such restrictions exist, lapse and
shall
bear interest at the prime rate less one percent (1%) after such SEC
Restrictions lapse or if no such restrictions exist but Employee is unwilling to
sell. Such loans shall be due and payable one (1) year after the issuance of the
Restricted Shares, provided that the after-tax proceeds of any earlier sale of
the Restricted Shares shall be used to prepay such loans.
6. In the event of a Change in Control of the Company (as defined in
Section 8 of the Agreement) on or before January 2, 1998, the Company shall pay
to the Employee a bonus of $400,000 within 14 days of such Change in Control,
and the Company shall have no obligation to issue to the Employee the shares
referred to in Section 5 above.
To the extent any provision of this Amendment is inconsistent with any
provision of the Agreement, such provision of the Agreement is hereby modified
and superseded by the terms hereof. Any term of the Agreement not so modified
or superseded shall remain in full force and effect.
EXECUTED as of the ___ day of June, 1997.
COMPANY:
BANYAN SYSTEMS INCORPORATED
By: /s/ John F. Burton
-----------------------------
Name: John F. Burton
Title: Chairman of the Board
EMPLOYEE:
/s/ William P. Ferry
-----------------------------
William P. Ferry
-2-