UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of
the
Securities Exchange Act of 1934
Filed by the Registrant ☒
Filed by a partyParty other than the Registrant ☐
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| x | Preliminary Proxy Statement |
| ¨ | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
| ¨ | Definitive Proxy Statement |
| ¨ | Definitive Additional Materials |
| ¨ | Soliciting Material under §240.14a-12 |
Banyan Acquisition Corporation
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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| ¨ | Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a6(i)(1) and 0-11 |
Banyan Acquisition CorporationPRELIMINARY PROXY MATERIALS
— SUBJECT TO COMPLETION
DATED NOVEMBER 22, 2023
LETTER TO STOCKHOLDERS OF BANYAN ACQUISITION CORPORATION
400 Skokie BlvdBlvd.
Suite 820
Northbrook, Illinois 60062
Dear Banyan Acquisition Corporation:
You are cordially invited to attend thea special meeting (the “special meeting”) of stockholders of Banyan Acquisition Corporation, a Delaware corporation (“Banyan,” the “Company,” “we,” “us” or “our”) to, which will be held on April 18,December , 2023, at 11:00 a.ma.m., Eastern time. Time, as a virtual meeting, or at such other time, on such other date and at such other place to which the meeting may be postponed or adjourned (the “Stockholder Meeting”).
You can participate in the virtual Stockholder Meeting, vote, and submit questions via live webcast by visiting https://www.cstproxy.com/ . Please see “Questions and Answers about the Stockholder Meeting — How do I attend the virtual Stockholder Meeting?” in the accompanying proxy statement for more information. Even if you are planning on attending the Stockholder Meeting online, please promptly submit your proxy vote online, or, if you received a printed form of proxy in the mail, by completing, dating, signing and returning the enclosed proxy, so your shares will be represented at the Stockholder Meeting.
The special meetingaccompanying notice of the Stockholder Meeting and proxy statement describe the business Banyan will conduct at the Stockholder Meeting and provide information about Banyan that you should consider when you vote your shares. As more fully described in the accompanying proxy statement, which is dated , 2023, and is first being mailed to stockholders on or about that date, the Stockholder Meeting will be held virtually at https://www.cstproxy.com/banyanacquisition/2023.for the purpose of considering and voting on the following proposals:
| 1. | Proposal No. 1 — Extension Amendment Proposal — To amend Banyan’s amended and restated certificate of incorporation (the “Certificate of Incorporation”) to extend the date (the “Termination Date”) by which Banyan has to consummate a business combination (the “Charter Extension”) from December 24, 2023 (the “Original Termination Date”) to January 24, 2024 (the “Charter Extension Date”) and to allow Banyan, without another stockholder vote, to elect to extend the Termination Date to consummate a business combination on a monthly basis for up to twelve times by an additional one month each time after the Charter Extension Date, by resolution of Banyan’s board of directors (the “Board”), if requested by Banyan Acquisition Sponsor LLC, a Delaware limited liability company (the “Sponsor”), and upon five days’ advance notice prior to the applicable Termination Date, until January 24, 2025, or a total of up to thirteen months after the Original Termination Date, unless the closing of a business combination shall have occurred prior thereto (the “Extension Amendment Proposal”). A copy of the proposed amendment is set forth in Annex A to the accompanying proxy statement; and |
| 2. | Proposal No. 2 — Redemption Limitation Amendment Proposal — To amend, Banyan’s Certificate of Incorporation to eliminate from the Certificate of Incorporation the limitation that Banyan may not redeem Public Stock (as defined below) to the extent that such redemption would result in Banyan having net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934, as amended), of less than $5,000,001 (the “Redemption Limitation”) in order to allow Banyan to redeem Public Stock irrespective of whether such redemption would exceed the Redemption Limitation (the “Redemption Limitation Amendment,” and such proposal the “Redemption Limitation Amendment Proposal”). A copy of the proposed amendment is set forth in Annex B to the accompanying proxy statement; and |
| 3. | Proposal No. 3 — Adjournment Proposal — To adjourn the Stockholder Meeting to a later date or dates, if necessary, (i) to permit further solicitation and vote of proxies if, based upon the tabulated vote at the time of the Stockholder Meeting, there are insufficient shares of Class A common stock, par value $0.0001 per share (the “Class A Common Stock”) and shares of Class B common stock, par value $0.0001 per share (“Class B Common Stock” and together with the Class A Common Stock, the “Common Stock”), in the capital of Banyan represented (either in person or by proxy) at the time of the Stockholder Meeting to approve the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal or (ii) where the Board has determined it is otherwise necessary (the “Adjournment Proposal”). |
The CharterExtension Amendment Proposal, —
Approval of the Extension Amendment Proposal is a condition to the implementation of the Charter Extension. In addition, Banyan will not proceed with the Charter Extension unless (i) the Redemption Limitation Amendment Proposal is approved or (ii) if Banyan will have at least $5,000,001 of net tangible assets following approval of the Extension Amendment Proposal, after taking into account the Redemptions. Banyan cannot predict the amount that will remain in the Trust Account following the Redemptions if the Extension Amendment Proposal is approved, and the Adjournment Proposal are collectively referred to herein as the “Proposals.”
As previously disclosed in the NYSECurrent Report on Form 8-K filed with SEC on June 23, 2023, Banyan, Pinstripes, Inc., a Delaware corporation (“Pinstripes”) and maintain our attractiveness to potential business combination targets.
The purpose of the Original Termination Date of April 24, 2023, to October 24, 2023 (such date referred to herein as the Original Extended Date), or 21 months following the closing of our IPO as extended. As more fully described in the IPO Prospectus, we may exercise each three month Original Extension Option by depositing into the Trust Account maintained by the Trustee, $0.10 for each share of our Class A Common Stock included in the units which were sold to the public in our IPO. If the Charter Amendment Proposal andis to allow Banyan additional time to complete the Trust Amendment ProposalBusiness Combination. You are approved andnot being asked to vote on the Extension Amendments are implemented, the Original Extension Options will be replaced by the Extension Option, which will provide us the option to extend the period by which we must consummate a Business Combination by eight months from the Original Termination Dateat this time.
The Certificate of April 24, 2023, to an Amended Extended Date of December 24, 2023, or 23 months from the closing of our IPO, assuming the Extension Option is exercised. The Extension Option may be exercised upon at least two calendar day’s advance notice to the Trustee.
If the Extension Amendment Proposal is approved and the Charter Extension becomes effective, within ten (10) business days of the date of the Stockholder Meeting, the Sponsor (or one or more of its affiliates, members or third-party designees) (the “Lender”) shall make a deposit into the Trust Account (as defined below) of $ per share of Public Stock that is not redeemed in connection with the Stockholder Meeting, in exchange for one or more non-interest bearing, unsecured promissory notes issued by Banyan to the Lender. In addition, if the Extension Amendment Proposal is approved and the Charter Extension becomes effective, in the event that Banyan has not consummated a business combination by January 24, 2024, without approval of Banyan’s public stockholders, Banyan may, by resolution of the Board, if requested by the Amended ExtendedSponsor, and upon five days’ advance notice prior to the applicable Termination Date, andextend the Termination Date up to twelve times, each by one additional month (for a total of up to twelve additional months to complete a business combination), provided that the Lender will deposit into the Trust Account for each month so extended $ per each share of Public Stock that is not redeemed in connection with the Stockholder Meeting, for an aggregate deposit of up to $ per each share of Public Stock that is not redeemed in connection with the Stockholder Meeting (if all twelve additional monthly extensions are exercised), in exchange for a non-interest bearing, unsecured promissory note issued by Banyan to the Lender. If Banyan completes a business combination, it will, at the option of the Lender, repay the amounts loaned under the promissory note or convert a portion or all of the amounts loaned under such promissory note into warrants, which warrants will be identical to the Private Placement Warrants (as defined below). If Banyan does not wish to seek an additional extension beyondcomplete a business combination by the applicable Termination Date, such time, wepromissory note will wind up the Company’s affairs and redeem 100%be repaid only from funds held outside of the outstanding public sharesTrust Account or will be forfeited, eliminated or otherwise forgiven.
The purpose of the Redemption Limitation Amendment Proposal is to eliminate from the Certificate of Incorporation the Redemption Limitation in order to allow Banyan to redeem Public Stock, irrespective of whether such redemption would exceed the Redemption Limitation. The Board believes it is in the best interests of Banyan and its stockholders for Banyan to be allowed to effect redemptions irrespective of the Redemption Limitation.
Banyan reserves the right at any time to cancel the Stockholder Meeting and not to submit to its stockholders the Extension Amendment Proposal and implement the Charter Extension. In the event the Stockholder Meeting is cancelled, and a business combination is not consummated prior to the Original Termination Date, Banyan will dissolve and liquidate in accordance with the same procedures that would be applicable ifCertificate of Incorporation.
As contemplated by the Extension Amendments are not approved.
In the event that the Redemption Limitation Amendment Proposal is not approved and we receive notice of redemptions of Public Stock approaching or in excess of the Redemption Limitation, we and/or the Sponsor may take action to increase our dissolution ifnet tangible assets to avoid exceeding the Redemption Limitation, which may include, at our and our Sponsor’s option and in our and its sole discretion, any, several or all of the following actions: (a) attempting to secure waivers of certain of our significant liabilities, including the deferred underwriting fees, and (b) entering into non-redemption agreements with certain of our significant stockholders. If the Redemption Limitation Amendment Proposal is not approved and the Redemption Limitation is exceeded, either because we do not consummatetake action to increase our net tangible assets or because our attempt to do so is not successful, then we will not proceed with the Charter Extension and we will not redeem any Public Stock. In such case, Public Stock which a Business Combination.
To exercise yourOn , 2023, the most recent practicable date prior to the date of this proxy statement, the redemption rights, you must tender your shares to our transfer agent at leastprice per share was approximately $ , based on the aggregate amount on deposit in the Trust Account of approximately $ as of , 2023 (including interest net of taxes payable), divided by the total number of then issued and outstanding Public Stock. The redemption price per share in connection with the Extension Amendment Proposal will be calculated based on the aggregate amount on deposit in the Trust Account two business days prior to the special meeting. You may tender your shares by either delivering your share certificate to the transfer agent or by delivering your shares electronically using the Depository Trust Company’s DWAC (Deposit/Withdrawal At Custodian) system. If you hold your shares in street name, you will need to instruct your bank, broker or other nominee to withdraw the shares from your account in order to exercise your redemption rights.
If the Extension Amendments areAmendment Proposal is not approved by April 24, 2023, unless we exercise ourand the Business Combination is not completed on or before the Original Extension Options, we willTermination Date, Banyan will: (i) cease all operations except for the purpose of winding up; (ii) as promptly as reasonably possible but not more than ten business days thereafter subject to lawfully available funds therefor, redeem 100% of the Public Stock, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest (net of taxes payable, and less up to $100,000 of interest to pay dissolution expenses) divided by the number of the then issued and outstanding Public Stock, which redemption will completely extinguish public stockholders’ rights as stockholders (including the right to receive further liquidation distributions, if any), subject to applicable law; and (iii) as promptly as reasonably possible following such redemption, subject to the approval of Banyan’s remaining stockholders and the Board, liquidate and dissolve, subject in each case to Banyan’s obligations under the Delaware General Corporation Law to provide for claims of creditors and the requirements of other applicable law. There will be no distribution from the Trust Account with respect to Banyan’s warrants, which will expire worthless in the event of our winding up.
The approval of the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal requires the affirmative vote of at least sixty-five percent (65%) of the issued and outstanding shares of Common Stock.
Approval of the Adjournment Proposal requires the affirmative vote of at least a majority of the votes cast by the holders of the issued and outstanding shares of Common Stock who are present in person virtually or represented by proxy and entitled to vote thereon at the Stockholder Meeting. The Adjournment Proposal will only be put forth for a vote if there are insufficient shares of Common Stock voted at the Stockholder Meeting to approve the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal at the Stockholder Meeting or where the Board has determined it is otherwise necessary.
The Board has fixed the close of business on , 2023 as the date for determining Banyan’s stockholders entitled to receive notice of and vote at the Stockholder Meeting and any adjournment thereof (the “Record Date”). Only holders of record of Common Stock on that date are entitled to have their votes counted at the Stockholder Meeting or any adjournment thereof.
Banyan believes that it is in the best interests of Banyan’s stockholders that Banyan obtain the Charter Extension and the Redemption Limitation Amendment. After careful consideration of all relevant factors, the Board has determined that the Extension Amendment Proposal, the Redemption Limitation Amendment and the Adjournment Proposal are in the best interests of Banyan and its stockholders, has declared it advisable and recommends that you vote or give instruction to vote “FOR” the Extension Amendment Proposal, “FOR” the Redemption Limitation Amendment and “FOR” the Adjournment Proposal.
Your vote is very important. Whether or not you plan to attend the Stockholder Meeting, please vote as soon as possible by following the instructions in the accompanying proxy statement to make sure that your shares are represented and voted at the Stockholder Meeting. If you hold your shares in “street name” through a bank, broker or other nominee, you will need to follow the instructions provided to you by your bank, broker or other nominee to ensure that your shares are represented and voted at the Stockholder Meeting. The approval of each of the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal requires the affirmative vote of at least sixty-five percent (65%) of the issued and outstanding shares of Common Stock. Approval of the Adjournment Proposal requires the affirmative vote of at least a majority of the votes cast by the holders of the issued and outstanding shares of Common Stock who are present in person or represented by proxy and entitled to vote thereon at the Stockholder Meeting. Accordingly, if you fail to vote in person or by proxy at the Stockholder Meeting, your shares will not be counted for the purposes of determining whether the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal and the Adjournment Proposal are approved by the requisite majorities.
If you sign, date and return your proxy card without indicating how you wish to vote, your proxy will be voted FOR each of the proposals presented at the Stockholder Meeting. If you fail to return your proxy card or fail to instruct your bank, broker or other nominee how to vote, and do not attend the Stockholder Meeting in person, the effect will be that your shares will not be counted for purposes of determining whether a quorum is present at the Stockholder Meeting but will not constitute votes cast at the Stockholder Meeting and therefore will have the same effect as a vote “AGAINST” the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal and no effect on the approval of the Adjournment Proposal. If you are a stockholder of record and you attend the Stockholder Meeting and wish to vote in person, you may withdraw your proxy and vote in person.
TO EXERCISE YOUR REDEMPTION RIGHTS, YOU MUST DEMAND IN WRITING THAT YOUR SHARES OF CLASS A COMMON STOCK ARE REDEEMED FOR A PRO RATA PORTION OF THE FUNDS HELD IN THE TRUST ACCOUNT AND TENDER YOUR SHARES TO BANYAN’S TRANSFER AGENT AT LEAST TWO BUSINESS DAYS PRIOR TO THE INITIALLY SCHEDULED DATE OF THE STOCKHOLDER MEETING. IN ORDER TO EXERCISE YOUR REDEMPTION RIGHT, YOU NEED TO IDENTIFY YOURSELF AS A BENEFICIAL HOLDER AND PROVIDE YOUR LEGAL NAME, PHONE NUMBER AND ADDRESS IN YOUR WRITTEN DEMAND. YOU MAY TENDER YOUR SHARES BY EITHER DELIVERING YOUR SHARE CERTIFICATE TO THE TRANSFER AGENT OR BY DELIVERING YOUR SHARES ELECTRONICALLY USING THE DEPOSITORY TRUST COMPANY’S DWAC (DEPOSIT WITHDRAWAL AT CUSTODIAN) SYSTEM. IF YOU HOLD THE SHARES IN STREET NAME, YOU WILL NEED TO INSTRUCT THE ACCOUNT EXECUTIVE AT YOUR BANK OR BROKER TO WITHDRAW THE SHARES FROM YOUR ACCOUNT IN ORDER TO EXERCISE YOUR REDEMPTION RIGHTS.
Enclosed is the proxy statement containing detailed information about the Stockholder Meeting, the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal and the Adjournment Proposal. Whether or not you plan to attend the Stockholder Meeting, Banyan urges you to read this material carefully and vote your shares.
| By Order of the Board of Directors of Banyan Acquisition Corporation | |
| Jerry Hyman Chairman of the Board of Directors |
BANYAN ACQUISITION CORPORATION
400 Skokie Blvd.
Suite 820
Northbrook, Illinois 60062
NOTICE OF A SPECIAL MEETING OF STOCKHOLDERS
OF BANYAN ACQUISITION CORPORATION
TO BE HELD ON DECEMBER , 2023
To the Stockholders of Banyan Acquisition Corporation:
NOTICE IS HEREBY GIVEN that a special meeting of the stockholders of Banyan Acquisition Corporation, a Delaware corporation (“Banyan”), will be held on December , 2023, at a.m., Eastern Time, as a virtual meeting, or at such other time, on such other date and at such other place to which the meeting may be postponed or adjourned (the “Stockholder Meeting”).
You can participate in the virtual Stockholder Meeting, vote and submit questions via live webcast by visiting www.cstproxy.com/ . Please see “Questions and Answers about the Stockholder Meeting — How do I attend the virtual Stockholder Meeting?” in the accompanying proxy statement for more information. Even if you are planning on attending the Stockholder Meeting online, please promptly submit your proxy vote online, or, if you received a printed form of proxy in the mail, by completing, dating, signing and returning the enclosed proxy, so your shares will be represented at the Stockholder Meeting.
You are cordially invited to attend the Stockholder Meeting that will be held for the purpose of considering and voting on (i) an extension amendment proposal to amend Banyan’s amended and restated certificate of incorporation (the “Certificate of Incorporation”) to extend the date (the “Termination Date”) by which Banyan has to consummate a business combination (the “Charter Extension”) from December 24, 2023 (the “Original Termination Date”) to January 24, 2024 (the “Charter Extension Date”) (the “Extension Amendment Proposal”); a copy of the proposed amendment is set forth in Annex A to the accompanying proxy statement; (ii) a redemption limitation amendment proposalto amend Banyan’s Certificate of Incorporation to eliminate from the Certificate of Incorporation the limitation that Banyan may not redeem Public Stock (as defined below) to the extent that such redemption would result in Banyan having net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934, as amended), of less than $5,000,001 (the “Redemption Limitation”) in order to allow Banyan to redeem Public Stock irrespective of whether such redemption would exceed the Redemption Limitation (the “Redemption Limitation Amendment,” and such proposal the “Redemption Limitation Amendment Proposal”); a copy of the proposed amendment is set forth in Annex B to the accompanying proxy statement and (iii) an adjournment proposal to adjourn the Stockholder Meeting to a later date or dates, if necessary, (a) to permit further solicitation and vote of proxies if, based upon the tabulated vote at the time of the Stockholder Meeting, there are insufficient shares of Class A common stock, par value $0.0001 per share (the “Class A Common Stock”) and shares of Class B common stock, par value $0.0001 per share (“Class B Common Stock” and together with the Class A Common Stock, the “Common Stock”) in the capital of Banyan represented (either in person or by proxy) at the time of the Stockholder Meeting to approve the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal or (ii) where Banyan’s board of directors (the “Board”) has determined it is otherwise necessary (the “Adjournment Proposal”) (unless Banyan determines that it is not necessary to hold the Stockholder Meeting as described in the accompanying proxy statement), each as more fully described below in the accompanying proxy statement, which is dated , 2023 and is first being mailed to stockholders on or about that date.
The proposals to be voted upon at the Stockholder Meeting are as follows:
| 1. | Proposal No. 1 — Extension Amendment Proposal — To amend Banyan’s Certificate of Incorporation to extend the date by which Banyan has to consummate a business combination from December 24, 2023 to January 24, 2024 and to allow Banyan, without another stockholder vote, to elect to extend the Termination Date to consummate a business combination on a monthly basis for up to twelve times by an additional one month each time after the Charter Extension Date, by resolution of the Board, if requested by Banyan Acquisition Sponsor LLC, a Delaware limited liability company (the “Sponsor”), and upon five days’ advance notice prior to the applicable Termination Date, until January 24, 2025, or a total of up to thirteen months after the Original Termination Date, unless the closing of a business combination shall have occurred prior thereto. A copy of the proposed amendment is set forth in Annex A to the accompanying proxy statement; and |
| 2. | Proposal No. 2 — Redemption Limitation Amendment Proposal — To amend,Banyan’s Certificate of Incorporation to eliminate from the Certificate of Incorporation the Redemption Limitation in order to allow Banyan to redeem Public Stock irrespective of whether such redemption would exceed the Redemption Limitation; A copy of the proposed amendment is set forth in Annex B to the accompanying proxy statement; and |
| 3. | Proposal No. 3 — Adjournment Proposal — To adjourn the Stockholder Meeting to a later date or dates, if necessary, (i) to permit further solicitation and vote of proxies if, based upon the tabulated vote at the time of the Stockholder Meeting, there are insufficient shares of Common Stock, in the capital of Banyan represented (either in person or by proxy) at the time of the Stockholder Meeting to approve the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal or (ii) where the Board has determined it is otherwise necessary. |
The Extension Amendment Proposal, the Redemption Limitation Amendment Proposal and the Adjournment Proposal are more fully described in the accompanying proxy statement. Please take the time to read carefully each of the proposals in the accompanying proxy statement before you vote.
If the Extension Amendment Proposal is approved and the Charter Extension becomes effective, within ten (10) business days of the date of the Stockholder Meeting, the Sponsor (or one or more of its affiliates, members or third-party designees) (the “Lender”) shall make a deposit into the Trust Account (as defined below) of $ per share of Public Stock that is not redeemed in connection with the Stockholder Meeting, in exchange for one or more non-interest bearing, unsecured promissory notes issued by Banyan to the Lender. In addition, if the Extension Amendment Proposal is approved and the Charter Extension becomes effective, in the event that Banyan has not consummated a business combination by January 24, 2024, without approval of Banyan’s public stockholders, Banyan may, by resolution of the Board, if requested by the Sponsor, and upon five days’ advance notice prior to the applicable Termination Date, extend the Termination Date up to twelve times, each by one additional month (for a total of up to twelve additional months to complete a business combination), provided that the Lender will deposit into the Trust Account for each month so extended $ per each share of Public Stock that is not redeemed in connection with the Stockholder Meeting for each such monthly extension, for an aggregate deposit of up to $ per each share of Public Stock that is not redeemed in connection with the Stockholder Meeting (if all twelve additional monthly extensions are exercised), in exchange for a non-interest bearing, unsecured promissory note issued by Banyan to the Lender. If Banyan completes a business combination, it will, at the option of the Lender, repay the amounts loaned under the promissory note or convert a portion or all of the amounts loaned under such promissory note into warrants, which warrants will be identical to the Private Placement Warrants (as defined below). If Banyan does not complete a business combination by the applicable Termination Date, such promissory note will be repaid only from funds held outside of the Trust Account or will be forfeited, eliminated or otherwise forgiven.
Approval of the Extension Amendment Proposal is a condition to the implementation of the Charter Extension. In addition, Banyan will not proceed with the Charter Extension unless (i) the Redemption Limitation Amendment Proposal is approved or (ii) if Banyan will have at least $5,000,001 of net tangible assets following approval of the Extension Amendment Proposal, after taking into account the Redemptions. Banyan cannot predict the amount that will remain in the Trust Account (as defined below) following the Redemptions if the Extension Amendment Proposal is approved, and the amount remaining in the Trust Account may be significantly less than the approximately $ that was in the Trust Account as of , 2023 (including interest net of taxes payable).
As previously disclosed in the Current Report on Form 8-K filed with SEC on June 23, 2023, Banyan, Pinstripes, Inc., a Delaware corporation (“Pinstripes”) and Panther Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Banyan, entered into a Business Combination Agreement (as it may be further amended or supplemented from time to time), contemplating several transactions in connection with which Banyan will become the parent company of Pinstripes (the “Business Combination”). For more information about the Business Combination, refer to our registration statement on Form S-4 initially filed with the Securities and Exchange Commission on September 11, 2023, as amended from time to time.
The purpose of the Extension Amendment Proposal is to allow Banyan additional time to complete the Business Combination. You are not being asked to vote on the Business Combination at this time.
The Certificate of Incorporation provides that Banyan has until the Original Termination Date to complete its initial business combination. Banyan’s Board has determined that it is in the best interests of Banyan to seek an extension of the Original Termination Date and have Banyan’s stockholders approve the Extension Amendment Proposal to allow for a period of additional time to consummate the Business Combination. Without the Charter Extension, Banyan believes that it may not be able to complete the Business Combination on or before the Original Termination Date. If that were to occur, Banyan would be precluded from completing the Business Combination and would be forced to liquidate. Banyan will not proceed with the Charter Extension if it completes the Business Combination on or before the Termination Date.
The purpose of the Redemption Limitation Amendment Proposal is to eliminate from the Certificate of Incorporation the Redemption Limitation in order to allow Banyan to redeem Public Stock, irrespective of whether such redemption would exceed the Redemption Limitation. The Board believes it is in the best interests of Banyan and its stockholders for Banyan to be allowed to effect redemptions irrespective of the Redemption Limitation.
Banyan reserves the right at any time to cancel the Stockholder Meeting and not to submit to its stockholders the Extension Amendment Proposal and implement the Charter Extension. In the event the Stockholder Meeting is cancelled, and the Business Combination is not consummated prior to the Original Termination Date, Banyan will dissolve and liquidate in accordance with the Certificate of Incorporation.
Banyan believes that it is in the best interests of Banyan’s stockholders that Banyan obtain the Charter Extension if needed. After careful consideration of all relevant factors, the Board has determined that the Extension Amendment Proposal, the Redemption Limitation Amendment and the Adjournment Proposal are in the best interests of Banyan and its stockholders, has declared it advisable and recommends that you vote or give instruction to vote “FOR” the Extension Amendment Proposal, “FOR” the Redemption Limitation Amendment and “FOR” the Adjournment Proposal.
As contemplated by the Certificate of Incorporation, the holders of Banyan’s Class A Common Stock, issued as part of the units sold in Banyan’s initial public offering (the “Public Stock”), may elect to redeem all or a portion of their Public Stock (the “Redemptions”) in exchange for their pro rata portion of the funds held in a trust account (the “Trust Account”) established to hold a portion of the proceeds of Banyan’s initial public offering (the “Initial Public Offering”) and the concurrent sale of private placement warrants (the “Private Placement Warrants”), if the Charter Extension is implemented, regardless of how such public stockholders vote in regard to the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal. If the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal is approved by the requisite vote of stockholders (and not abandoned) and the Charter Amendment or the Redemption Limitation Amendment is filed, holders of Public Stock remaining after the Redemptions will retain their right to redeem their Public Stock for their pro rata portion of the funds available in the Trust Account upon consummation of a business combination or if Banyan does not complete a business combination by the Charter Extension Date.
In the event that the Redemption Limitation Amendment Proposal is not approved and we receive notice of redemptions of Public Stock approaching or in excess of the Redemption Limitation, we and/or the Sponsor may take action to increase our net tangible assets to avoid exceeding the Redemption Limitation, which may include, at our and our Sponsor’s option and in our and its sole discretion, any, several or all of the following actions: (a) attempting to secure waivers of certain of our significant liabilities, including the deferred underwriting fees, and (b) entering into non-redemption agreements with certain of our significant stockholders. If the Redemption Limitation Amendment Proposal is not approved and the Redemption Limitation is exceeded, either because we do not take action to increase our net tangible assets or because our attempt to do so is not successful, then we will not proceed with the Charter Extension and we will not redeem any Public Stock. In such case, Public Stock which a public stockholder elects to redeem but which are not redeemed shall be returned to such public stockholders or such public stockholders’ account and such public stockholder will retain the right to have their Public Stock redeemed for cash if Banyan has not completed an initial business combination by the Termination Date.
On , 2023, the most recent practicable date prior to the date of this proxy statement, the redemption price per share was approximately $ , based on the aggregate amount on deposit in the Trust Account of approximately $ as of , 2023 (including interest and net of taxes payable), divided by the total number of then issued and outstanding Public Stock. The redemption price per share in connection with the Extension Amendment Proposal will be calculated based on the aggregate amount on deposit in the Trust Account two business days prior to the Stockholder Meeting. The closing price of the Public Stock on the New York Stock Exchange on , 2023, was $ . If the closing price of the Public Stock was to remain the same until the date of the Stockholder Meeting, exercising redemption rights would result in a public stockholder receiving approximately $ [more/less] per share than if the shares were sold in the open market (based on the current per share redemption price as of , 2023). Banyan cannot assure stockholders that they will be able to sell their Public Stock in the open market, even if the market price per share is lower than the redemption price stated above, as there may not be sufficient liquidity in its securities when such stockholders wish to sell their shares. Banyan believes that such redemption right enables its public stockholders to determine whether or not to sustain their investments for an additional period if Banyan does not complete the Business Combination on or before the Original Termination Date.
If the Extension Amendment Proposal is not approved and the Business Combination is not completed on or before the Original Termination Date, Banyan will: (i) cease all operations except for the purpose of winding up; (ii) as promptly as reasonably possible but not more than ten business days thereafter subject to lawfully available funds therefor, redeem 100% of the Public Stock, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account, including interest, (net of taxes payable, and not previously released to us to pay our taxes, if any (lessless up to $100,000 of such interest to pay dissolution expenses, which interest shall be net of taxes payable thereon)expenses), divided by the total number of the then issued and outstanding shares of Class A CommonPublic Stock, which redemption will completely extinguish public stockholders’ rights as stockholders (including the right to receive further liquidatingliquidation distributions, if any), subject to applicable law; and (iii) as promptly as reasonably possible following such redemption, subject to the approval of ourBanyan’s remaining stockholders and ourthe Board, in accordance with applicable law, liquidate and dissolve, subject in each case to ourBanyan’s obligations under the Delaware lawGeneral Corporation Law (the “DGCL”) to provide for claims of creditors and the requirements of other applicable law. In order to mitigate the current uncertainty surrounding the implementation of the Inflation Reduction Act of 2022, we have decided that in the event that the Proposals are approved and implemented as described herein, funds in trust, including any interest thereon, will not be used to pay for any excise tax liabilities with respect to any future redemptions that occur prior to or in connection with a Business Combination and which result from the implementation of the Inflation Reduction Act of 2022. Because the excise tax would be payable by us, and not by the redeeming holder, the mechanics of any required payment of the excise tax have not been determined. The foregoing could cause a reduction in the cash available on hand to complete a Business Combination and in our ability to complete a Business Combination.
In the Company winds up.
If Banyan liquidates, the Sponsor has agreed that they will be liable to indemnify us if and to the extent any claims by a third-party (excluding our independent registered public accounting firm)third party for services rendered or products sold to us, or any claims by a prospective target business with which we have discussed entering into a transactionan acquisition agreement, reduce the amountsamount of funds in the Trust Account to below (i) $10.37$10.20 per public share (subject to increase for any additional amounts deposited into the Trust Account in respect of any Original Extension Option)Public Stock or (ii) such lesser amount per public share of Public Stock held in the Trust Account as of the date of the liquidation of the Trust Account due to reductions in the value of the trust assets, in each case net of the interest which may be withdrawn to pay taxes, except as to any claims by a third-party thatthird party who executed a waiver of any and all rights to seek access to the trust accountour Trust Account and except as to any claims under our indemnity of the underwriters of thisBanyan’s initial public offering against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”).amended. Moreover, in the event that an executed waiver is deemed to be unenforceable against a third-party, our sponsorthird party, the Sponsor will not be responsible to the extent of any liability for such third-party claims. However, we believeWe cannot assure you, however, that our Sponsor’s only assets are securities of the Company. Accordingly, we believe it is unlikely that our Sponsor would be able to satisfy those obligations. We have not asked our Sponsor to reserve for such obligations, and therefore, no funds are currently set aside to cover any such obligations. NoneBased upon the current amount in the Trust Account, we anticipate that the per-share price at which shares of our officers or directorsPublic Stock will indemnify us for claims by third parties including, without limitation, claims by vendors and prospective target businesses. The per-share liquidation price forbe redeemed from cash held in the public shares is anticipated toTrust Account will be approximately $10.37 (based on the amount expected to be in trust at the time of the special meeting and subject to the release of funds not previously released to us to pay our taxes)$ . Nevertheless, weBanyan cannot assure you that the per share distribution from the Trust Account, if the CompanyBanyan liquidates, will not be less than $10.37,$ , plus interest, due to unforeseen claims of potential creditors. We will distribute to all of our public stockholders, in proportion to their respective equity interests, an aggregate amount then on deposit in the Trust Account, including any interest earned on the funds held in the Trust Account net of interest that may be used by us to pay our franchise and income taxes payable.
Under the Delaware General Corporation Law (the “DGCL,”), stockholders may be held liable for claims by third parties against a corporation to the extent of distributions received by them in a dissolution. The pro rata portion of our Trust Account distributed to our public stockholders upon the redemption of 100% of our public shares in the event we do not complete our Business Combination within the required time period may be considered a liquidation distribution under Delaware law. If the corporation complies with certain procedures set forth in Section 280 of the DGCL intended to ensure that it makes reasonable provision for all claims against it, including a 60-day notice period during which any third-party claims can be brought against the corporation, a 90-day period during which the corporation may reject any claims brought, and an additional 150-day waiting period before any liquidating distributions are made to stockholders, any liability of stockholders with respect to a liquidating distribution is limited to the lesser of such stockholder’s pro rata share of the claim or the amount distributed to the stockholder, and any liability of the stockholder would be barred after the third anniversary of the dissolution.
TO EXERCISE YOUR REDEMPTION RIGHTS, YOU MUST DEMAND IN WRITING THAT YOUR SHARES OF CLASS A COMMON STOCK ARE REDEEMED FOR A PRO RATA PORTION OF THE FUNDS HELD IN THE TRUST ACCOUNT AND TENDER YOUR SHARES TO BANYAN’S TRANSFER AGENT AT LEAST TWO BUSINESS DAYS PRIOR TO THE INITIALLY SCHEDULED DATE OF THE STOCKHOLDER MEETING. IN ORDER TO EXERCISE YOUR REDEMPTION RIGHT, YOU NEED TO IDENTIFY YOURSELF AS A BENEFICIAL HOLDER AND PROVIDE YOUR LEGAL NAME, PHONE NUMBER AND ADDRESS IN YOUR WRITTEN DEMAND. YOU MAY TENDER YOUR SHARES BY EITHER DELIVERING YOUR SHARE CERTIFICATE TO THE TRANSFER AGENT OR BY DELIVERING YOUR SHARES ELECTRONICALLY USING THE DEPOSITORY TRUST COMPANY’S DWAC (DEPOSIT WITHDRAWAL AT CUSTODIAN) SYSTEM. IF YOU HOLD THE SHARES IN STREET NAME, YOU WILL NEED TO INSTRUCT THE ACCOUNT EXECUTIVE AT YOUR BANK OR BROKER TO WITHDRAW THE SHARES FROM YOUR ACCOUNT IN ORDER TO EXERCISE YOUR REDEMPTION RIGHTS.
With respect to the regulation of special purpose acquisition companies (“SPACs”) like Banyan, on March 30, 2022, the Securities and Exchange Commission (“SEC”) issued proposed rules relating to, among other items, the extent to which SPACs could become subject to regulation under the Investment Company Act of 1940, as amended. The proposal is consistent with Section 280less formal positions recently taken by the staff of the DGCL, Section 281(b)SEC. To mitigate the risk of being viewed as operating an unregistered investment company, Banyan currently intends, prior to the DGCL requires us24-month anniversary of its initial public offering (if the Termination Date is extended past such date), to adopt a plan, based on facts knowninstruct Continental Stock Transfer & Trust Company, the trustee with respect to us at such time that will provide for our payment of all existing and pending claims or claims that may be potentially brought against us within the subsequent ten years. However, because we are a blank check company, rather than an operating company, and our operations will be limited to searching for prospective target businesses to acquire, the only likely claims to arise would be from our vendors (such as lawyers, investment bankers, etc.) or prospective target businesses.
The approval of each of the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal requires the affirmative vote of at least sixty-five percent (65%) of the issued and outstanding shares of Common Stock.
Approval of the Adjournment Proposal requires the affirmative vote of at least a majority of the votes cast by us to complete a Business Combination onthe holders of the issued and outstanding shares of Common Stock who are present in person or before the Amended Extended Date. Holders of public shares who do not redeem their public shares now will retain their redemption rightsrepresented by proxy and their abilityentitled to vote on any Business Combination throughthereon at the Amended Extended DateStockholder Meeting. The Adjournment Proposal will only be put forth for a vote if there are insufficient shares of Common Stock voted at the Stockholder Meeting to approve the Extension Amendments are approved.
Record holders of our common stockCommon Stock at the close of business on the record date, 2023 (the “Record Date”) are entitled to vote or have their votes cast at the special meeting.Stockholder Meeting. On the record date,Record Date, there were 31,395,0003,998,687 issued and outstanding shares of common stock. OurClass A Common Stock held by public stockholders, 2,000,000 issued and outstanding shares of Class A Common Stock held by the Sponsor and 5,245,000 issued and outstanding shares of Class B Common Stock held by the Sponsor Holders. Banyan’s warrants do not have voting rights.
The Sponsor Holders and Banyan’s officers and directors intend to vote all of their Common Stock in favor of the proposals being presented at the Stockholder Meeting and have, pursuant to a letter agreement, agreed to, among other things, waive their redemption rights with respect to any Common Stock held by them in connection with this Stockholder Meeting. Such shares will be excluded from the pro rata calculation used to determine the per-share redemption price. As of the date of the accompanying proxy statement, the Sponsor Holders collectively hold 64.4% of the issued and outstanding shares of Common Stock. As a result, in addition to the Sponsor, (i) approval of each of the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal will require the affirmative vote of at least 63,397 shares of Public Stock (or approximately 1.6% of the Public Stock) and (ii) approval of the Adjournment Proposal will require the affirmative vote of no shares of Public Stock if all shares of Public Stock are represented at the Stockholder Meeting and cast votes. If only such shares as are required to establish a quorum are represented at the Stockholder Meeting and cast votes, the no affirmative votes will be required of public stockholders for any of the proposals.
The accompanying proxy statement contains important information about the special meetingStockholder Meeting, the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal and the proposals. PleaseAdjournment Proposal. Whether or not you plan to attend the Stockholder Meeting, Banyan urges you to read itthis material carefully and vote your shares.
The accompanying proxy statement is dated March 30,, 2023 and is first being mailed to stockholders on or about March 31, 2023.
| By Order of the Board of Directors of Banyan Acquisition Corporation | |
| Jerry Hyman Chairman of the Board of Directors , 2023 |
TABLE OF CONTENTS
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Banyan Acquisition CorpORATION
TO BE HELD ON dECEMBER , 2023
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YOUR VOTE IS IMPORTANT. It is important that your shares be represented at the Stockholder Meeting, regardless of the number of shares that you hold. You are, therefore, urged to execute and return, at your earliest convenience, the enclosed proxy card in the envelope that has also been provided.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements contained in this proxy statement contain “forward- looking statements”constitute forward-looking statements within the meaning of Section 27A of the Securities Act of 1933,federal securities laws. Forward-looking statements relate to expectations, beliefs, projections, future plans and strategies, anticipated events or the Securities Act,trends and Section 21E of the Securities Exchange Act of 1934, or the Exchange Act. The statements contained in this reportsimilar expressions concerning matters that are not purely historical facts. Forward-looking statements reflect the current views of Banyan with respect to, among other things, Banyan’s capital resources and results of operations. Likewise, Banyan’s financial statements and all of Banyan’s statements regarding market conditions and results of operations are forward-looking statements. OurIn some cases, you can identify these forward-looking statements include, but are not limited to, statements regarding our or our management’s expectations, hopes, beliefs, intentions or strategies regardingby the future. In addition, any statements that refer to projections, forecasts or other characterizationsuse of future events or circumstances, including any underlying assumptions, are forward-looking statements. The words “anticipates,terminology such as “outlook,” “believe,“believes,” “continue,“expects,” “potential,” “continues,” “may,” “will,” “should,” “could,” “estimate,“seeks,” “expect,“approximately,” “intend,“predicts,” “may,“intends,” “might,“plans,” “plan,“estimates,” “possible,” “potential,” “predict,” “project,” “should,” “would” and similar expressions may identify forward-looking statements, but“anticipates” or the absencenegative version of these words does not mean that a statement is not forward-looking.
The forward-looking statements contained in this proxy statement reflect Banyan’s current views about future events and are subject to numerous known and unknown risks, uncertainties, assumptions and changes in circumstances that may cause its actual results to differ significantly from those expressed in any forward-looking statement. Banyan does not guarantee that the documentstransactions and events described will happen as described (or that they will happen at all). The following factors, among others, could cause actual results and future events to which we refer youdiffer materially from those set forth or contemplated in the forward-looking statements:
| · | Banyan’s ability to complete the Business Combination (as defined below); |
| · | the anticipated benefits of the Business Combination; |
| · | the volatility of the market price and liquidity of the Public Stock (as defined below) and other securities of Banyan; and |
| · | the use of funds not held in the Trust Account (as described herein) or available to Banyan from interest income on the Trust Account balance. |
While forward-looking statements reflect Banyan’s good faith beliefs, they are not guarantees of future performance. Banyan disclaims any obligation to publicly update or revise any forward-looking statement to reflect changes in underlying assumptions or factors, new information, data or methods, future events or other changes after the date of this proxy statement, are based on our current expectationsexcept as required by applicable law. For a further discussion of these and beliefs concerningother factors that could cause Banyan’s future developments and their potential effects on us. There can be no assurance that future developments affecting us will be those that we have anticipated. These forward-looking statements involve a number of risks, uncertainties (some of which are beyond our control)results, performance or other assumptions that may cause actual results or performancetransactions to be materially differentdiffer significantly from those expressed or implied by thesein any forward-looking statements. These risks and uncertainties may include, but are not limited to, for example,statement, please see the following risks, uncertainties and other factors:
YouIn addition to the below risk factors, you should consider carefully all of the risks described in our prospectus dated January 19, 2022, our Annual Report on Form 10-K filed with the SEC on March 31, 2022, our2023, any subsequent Quarterly ReportsReport on Form 10-Q filed with the SEC on May 16, 2022, August 12, 2022 and November 10, 2022 and in the other reports we file with the SEC before making any votinga decision or a redemption decision. Furthermore, if any of the following events occur,to invest in our business, financial condition and operating results may be materially adversely affected or we could face liquidation. In that event, the trading price of our securities could decline, and you could lose all or part of your investment.securities. The risks and uncertainties described in the aforementioned filings and below are not the only ones we face. Additional risks and uncertainties that we are unaware of, or that we currently believe are not material, may also become important factors that adversely affect our business, financial condition and operating results or result in our liquidation.
The ability of our public stockholders to exercise redemption rights if the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal is approved with respect to a large number of our Public Stock may adversely affect the liquidity and trading of our securities and may impact our ability to complete the Business Combination.
Pursuant to our Certificate of Incorporation, a public stockholder may request that Banyan redeem all or a portion of such public stockholder’s Banyan Class A Common Stock issued as part of the units sold in Banyan’s initial public offering(the “Public Stock”) for cash if the Extension Amendment Proposal (as defined below) or the Redemption Limitation Amendment Proposal (as defined below) is approved. The ability of our public stockholders to exercise such redemption rights with respect to a large number of our Public Stock may adversely affect the liquidity of our shares of Public Stock. As a result, you may be unable to sell your Public Stock even if the per-share market price is higher than the per-share redemption price paid to public stockholders that elect to redeem their Public Stock if the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal is approved.
In addition, after the Stockholder Meeting, we may be required to demonstrate compliance with the New York Stock Exchange’s (the “NYSE”) continued listing requirements in order to maintain the listing of our securities on the NYSE. Such continued listing requirements for our securities include, among other things, having at least 300 stockholders, 600,000 publicly held shares and an average aggregate global market capitalization attributable to our publicly held shares of at least $40 million. We cannot assure you that any of our securities will be able to meet all of the NYSE continued listing requirements following any redemptions in connection with the Stockholder Meeting. If our securities do not meet NYSE’s continued listing requirements, the NYSE may delist our securities from trading on its exchange, which could limit investors’ ability to make transactions in our securities and subject us to additional trading restrictions.
If we redeem our Public Stock in an amount in excess of the current Redemption Limitation (as defined below) and our securities do not meet NYSE’s continued listing requirements, NYSE may delist our securities from trading on its exchange. If NYSE delists any of our securities from trading on its exchange and we are not able to list such securities on another approved national securities exchange, we expect that such securities could be quoted on an over-the-counter market. If this were to occur, we could face significant material adverse consequences, including (i) a limited availability of market quotations for our securities, (ii) reduced liquidity for our securities, (iii) a determination that our Public Stock are “penny stocks” which will require brokers trading in our Public Stock to adhere to more stringent rules, including being subject to the depository requirements of Rule 419 of the Securities Act, and possibly result in a reduced level of trading activity in the secondary trading market for our securities, (iv) a decreased ability to issue additional securities or obtain additional financing in the future, and (v) a less attractive acquisition vehicle to a target business in connection with an initial business combination. The National Securities Markets Improvement Act of 1996, which is a federal statute, prevents or preempts the states from regulating the sale of certain securities, which are referred to as “covered securities.” Our Public Stock and units qualify as covered securities under such statute. If we were no longer listed on NYSE, our securities would not qualify as covered securities under such statute and we would be subject to regulation in each state in which we offer our securities.
We may be subject to the 1% excise tax included in the Inflation Reduction Act of 2022.
On August 16, 2022, the Inflation Reduction Act of 2022 (the “IR Act”) was signed into federal law. The IR Act provides for, among other measures, a new U.S. federal 1% excise tax on certain repurchases (including redemptions) of stock by publicly traded domestic (i.e., U.S.) corporations. The excise tax is imposed on the repurchasing corporation and the amount of the excise tax is generally 1% of the fair market value of the stock repurchased. However, for purposes of calculating the excise tax, repurchasing corporations are permitted to net the fair market value of certain new stock issuances against the fair market value of stock repurchases during the same taxable year. In addition, certain exceptions apply to the excise tax. The Treasury has been given authority to provide regulations and other guidance to carry out, and prevent the abuse or avoidance of, the excise tax. The IR Act applies only to repurchases that occur after December 31, 2022.
On December 27, 2022, the Treasury published Notice 2023-2, which provided clarification on some aspects of the application of the excise tax, including with respect to some transactions in which SPACs typically engage. In the notice, the Treasury appears to have intended to exempt from the excise tax any distributions, including those that occur in connection with redemptions, by a corporation in the same year it completely liquidates, but the guidance is not clearly drafted and arguably could be interpreted to have a narrower application. If Banyan does not either complete the Business Combination by December 31, 2023 or engages in a business combination in 2023 but does not issue shares sufficient to offset the earlier redemptions, Banyan may be subject to the excise tax imposed by the IR Act with respect of the Extension Amendment redemptions. Nevertheless, it remains uncertain whether, and/or to what extent, the excise tax could apply to redemptions of our stock.
As described under “Special Meeting of Banyan Stockholders — Redemption Rights” if the Termination Date (currently December 24, 2023) is extended, our public stockholders would have the right to require us to redeem their Public Stock. Any such redemption or other repurchase that occurs after December 31, 2022, in connection with a Business Combination or otherwise may be subject to the excise tax. In order to mitigate the current uncertainty surrounding the implementation of the IR Act, in the event that the Extension Amendment Proposal and/or the Redemption Limitation Amendment Proposal are approved and implemented as described in this proxy statement, funds in the Trust Account, including any interest earned thereon, will not be used to pay for any excise tax liabilities with respect to any redemptions of Public Stock by Banyan.
Whether and to what extent we would be subject to the excise tax will depend on a number of factors, including (i) whether the redemption is treated as a repurchase of stock for purposes of the excise tax, (ii) the fair market value of the redemptions treated as repurchases in connection with a business combination, (iii) whether the Business Combination closes, (iv) the nature and amount of any private investment in public equity or other equity issuances in connection with the Business Combination, and (v) the content of regulations and other guidance issued by the Treasury.
There are no assurances that the Charter Extension Amendments will enable us to complete athe Business Combination.
Approving the Charter Extension Amendments involves a number of risks. Even if the Charter Extension Amendments areis approved, we can provide no assurances that the Business Combination will be consummated prior to the Amended ExtendedCharter Extension Date. Our ability to consummate anythe Business Combination is dependent on a variety of factors, many of which are beyond our control. If the Charter Extension Amendments areis approved, we expectsexpect to seek stockholder approval of athe Business Combination after entering into a merger agreement with a target business.prior to the Charter Extension Date. We are required to offer stockholders the opportunity to redeem sharestheir Public Stock in connection with the CharterExtension Amendment Proposal and we will be required to offer stockholders redemption rights again in connection with any stockholder vote to approve the Business Combination.Redemption Limitation Amendment Proposal. Even if the Charter Extension Amendments or the Business Combination areis approved by our stockholders, it is possible that redemptionsRedemptions will leave us with insufficient cash to consummate athe Business Combination on commercially acceptable terms, or at all, which could make us less attractive to potential targets.all. The fact that we will have separate redemption eventsperiods in connection with the Charter Extension Amendmentsand the Redemption Limitation Amendment and the Business Combination votesvote could exacerbate these risks. Other than in connection with a redemption offer or liquidation, our stockholders may be unable to recover their investment except through sales of our shares on the open market. The price of our shares may be volatile, and there can be no assurance that stockholders will be able to dispose of our shares at favorable prices, or at all.
There is no guarantee that redeeming public shares will put public stockholdersChanges to laws or regulations or in how such laws or regulations are interpreted or applied, or a better future economic position.
We are subject to the liquidity of our securities.
The SEC has recently issued proposed rules relating to regulate special purpose acquisition companies.certain activities of SPACs. Certain of the procedures that we, a potential Business Combinationbusiness combination target or others may determine to undertake in connection with such proposals may increase our costs and the time needed to complete our Business Combinationinitial business combination and may constrain the circumstances under which we could complete a Business Combination.
On March 30, 2022, the SEC issued proposed rules (the “
SPACIf we wereare deemed to be an investment company for purposes of the Investment Company Act, we maywould be forcedrequired to institute burdensome compliance requirements and our activities would be severely restricted. As a result, in such circumstances, unless we are able to modify our activities so that we would not be deemed an investment company, we may abandon our efforts to complete an initialthe Business Combination and instead be required to liquidate the Company. To avoid that result, we may, at any time after the date of this proxy statement, liquidate securities held in the Trust Account and instead hold all funds in the Trust Account in demand deposit accounts or certificates of deposit, which may reduce the dollar amount our public stockholders would receive upon any redemption or liquidation of the Company.Banyan.
As described further above, the SPAC Rule Proposals, relating,Proposed Rules relate, among other things,matters, to the circumstances in which SPACs such as usBanyan could potentially be subject to the Investment Company Act and the regulations thereunder. The SPAC Rule ProposalsProposed Rules would provide a safe harbor for such companies from the definition of “investment company” under Section 3(a)(1)(A) of the Investment Company Act, provided that a SPAC satisfies certain criteria. To comply with the duration limitation of the proposed safe harbor, a SPAC would havecriteria, including a limited time period to announce and complete a de-SPAC transaction. Specifically, to comply with the safe harbor, the SPAC Rule ProposalsProposed Rules would require a SPACcompany to file a report on Form 8-K announcing that it has entered into an agreement with a target company for an initiala business combination no later than 18 months after the effective date of theits registration statement relating to the SPAC’sfor its initial public offering. Such SPACoffering (the “IPO Registration Statement”). Banyan would then be required to complete its initial business combination no later than 24 months after the effective date of the registration statement relatingIPO Registration Statement.
If we are deemed to its initial public offering.
To mitigate the risk that we might be deemed to be an investment company for purposes of the Investment Company Act, we might be forcedintend, prior to abandonthe 24-month anniversary of our effortsinitial public offering (if the Termination Date (as defined below) is extended past such date), to complete an initial Business Combinationinstruct the trustee to liquidate the investments held in the Trust Account and instead be required to liquidate. If we are required to liquidate, our investors would not be able to realizehold the benefits of owning stock in a successor operating business, including the potential appreciationfunds in the valueTrust Account in cash in an interest-bearing demand deposit account until the earlier of the consummation of our sharesinitial business combination or our liquidation. As a result, following such a transaction.
The funds in the Trust Account have, since our IPO,initial public offering, been held only in U.S. government securities within the meaning set forth in Section 2(a)(16) of the Investment Company Act,treasury obligations with a maturity of
In addition, the excise tax does not apply to the extent the applicable redemption is treated as a “dividend” for United States federal income tax purposes. Certain other exceptions apply to the excise tax. The Treasury Department and the IRS recently issued interim guidance addressing certain key aspects of the excise tax, pending forthcoming proposed regulations which are anticipated to be generally retroactive to January 1, 2023 when finalized. Significantly, the interim guidance clarifies that a complete liquidation of a covered corporation is not generally subject to the excise tax.
QUESTIONS AND ANSWERS ABOUT THE STOCKHOLDER MEETING
The questions and answers below highlight only selected information from this proxy statement and only briefly address some commonly asked questions about the Business Combination, weStockholder Meeting and the proposals to be presented at the Stockholder Meeting. The following questions and answers do not include all the information that is important to Banyan stockholders. Stockholders are urged to read carefully this entire proxy statement, including the other documents referred to herein, to fully understand the proposals to be presented at the Stockholder Meeting and the voting procedures for the Stockholder Meeting, which will be required to demonstrate compliance with the NYSE’s initial listing requirements, which are more rigorous than the NYSE’s continued listing requirements, in order to continue to maintain the listing of our securitiesheld on the NYSE. For instance, our stock price would generally be required to beDecember , 2023, at least $4 per share. We cannot assure you that wea.m., Eastern Time. The Stockholder Meeting will be ableheld as a virtual meeting, or at such other time, on such other date and at such other place to meet those initial listing requirements at that time.
| Q: | Why am I receiving this proxy statement? |
| A: | Banyan is a blank check company incorporated as a Delaware corporation and formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses. |
Following the closing of our IPO, a totalBanyan’s initial public offering on January 24, 2022 (the “Initial Public Offering”) and the full exercise of the underwriters’ over-allotment, $246,330,000 ($10.20 per unit offered in the Initial Public Offering (the “Units”)) from the net proceeds of the sale of the unitsUnits in our IPOthe Initial Public Offering and the sale of private placement warrants (the “Private Placement Warrants”) to Banyan Acquisition Sponsor LLC, a Delaware limited liability company (the “Sponsor”) and the private warrantsInitial Public Offering underwriters was placed in a trust account established at the consummation of the Initial Public Offering that holds the proceeds of the Initial Public Offering (the “Trust Account”).
Like most blank check companies, Banyan’s amended and restated certificate of incorporation (the “Certificate of Incorporation”) provides for the return of the Initial Public Offering proceeds held in trust to the holders of shares of Class A common stock, par value $0.0001 per share (the “Class A Common Stock”), issued as part of the Units (the “Public Stock”) if there is no qualifying business combination(s) consummated on or before December 24, 2023 (the “Original Termination Date”).
As previously disclosed in the Current Report on Form 8-K filed with SEC on June 23, 2023, Banyan, Pinstripes, Inc., a Delaware corporation (“Pinstripes”) and Panther Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Banyan, entered into a Business Combination Agreement (as it may be further amended or supplemented from time to time, the “Business Combination Agreement”), contemplating several transactions in connection with which Banyan will become the parent company of Pinstripes (the “Business Combination”). For more information about the Business Combination, refer to our Sponsor was placedregistration statement on Form S-4 initially filed with the Securities and Exchange Commission on September 11, 2023, as amended from time to time.
Without the Charter Extension, Banyan believes that Banyan might not, despite its best efforts, be able to complete the Business Combination on or before December 24, 2023. Banyan believes that it is in the best interests of Banyan’s stockholders to continue Banyan’s existence until January 24, 2024 (or January 24, 2025, if requested by the Sponsor) in order to allow Banyan additional time to complete the Business Combination and is therefore holding this Stockholder Meeting.
| Q: | When and where will the Stockholder Meeting be held? |
| A: | The Stockholder Meeting will be held on December , 2023, at a.m., Eastern Time, as a virtual meeting, or at such other time, on such other date and at such other place to which the meeting may be postponed or adjourned. |
We are planning for the Stockholder Meeting to be held virtually over the internet. We encourage you to attend the Stockholder Meeting virtually. You can participate in the meeting, vote, and submit questions via live webcast by visiting www.cstproxy.com/ . Please see “Questions and Answers about the Stockholder Meeting — How do I attend the virtual Stockholder Meeting?” for more information.
| Q: | How do I vote? |
| A: | If you were a holder of record of shares of Public Stock at the close of business on , 2023 (the “Record Date”), you may vote with respect to the proposals electronically, or by completing, signing, dating and returning the enclosed proxy card in the postage-paid envelope provided. |
Voting by Mail. By signing the proxy card and returning it in the enclosed prepaid and addressed envelope, you are authorizing the individuals named on the proxy card to vote your shares at the Stockholder Meeting in the manner you indicate. You are encouraged to sign and return the proxy card even if you plan to attend the Stockholder Meeting so that your shares will be voted if you are unable to attend the Stockholder Meeting. If you receive more than one proxy card, it is an indication that your shares are held in multiple accounts. Please sign and return all proxy cards to ensure that all of your shares are voted. Votes submitted by mail must be received by 5:00 p.m., Eastern Time, on December , 2023.
Voting Electronically. You may attend, vote and examine the list of stockholders entitled to vote at the Stockholder Meeting by visiting www.cstproxy.com/ and entering the control number found on your proxy card, voting instruction form or notice included in the proxy materials.
| Q: | How do I attend the virtual Stockholder Meeting? |
| A: | If you are a registered stockholder, you will receive a proxy card from Continental Stock Transfer &Trust Company (“Continental,” or the “Transfer Agent”). The form contains instructions on how to attend the virtual Stockholder Meeting including the URL address, along with your control number. You will need your control number for access. If you do not have your control number, contact the Transfer Agent at 917-262-2373, or email proxy@continentalstock.com. |
You can pre-register to attend the virtual Stockholder Meeting starting December , 2023, at 9:00 a.m., Eastern Time (two business days prior to the meeting date). Enter the URL address into your browser www.cstproxy.com/ , enter your control number, name and email address. Once you pre-register you can vote or enter questions in the chat box. At the start of the Stockholder Meeting you will need to log in again using your control number and will also be prompted to enter your control number if you vote during the Stockholder Meeting.
Stockholders who hold their investments through a bank or broker, will need to contact the Transfer Agent to receive a control number. If you plan to vote at the Stockholder Meeting you will need to have a legal proxy from your bank or broker or if you would like to join and not vote, the Transfer Agent will issue you a guest control number with proof of ownership. In either case you must contact the Transfer Agent for specific instructions on how to receive the control number. The Transfer Agent can be contacted at the number or email address above. Please allow up to 72 hours prior to the meeting for processing your control number.
If you do not have access to Internet, you can listen only to the meeting by dialing (or +1 if you are located outside the United States and Canada (standard rates apply)) and when prompted enter the pin number #. Please note that you will not be able to vote or ask questions at the Stockholder Meeting if you choose to participate telephonically.
| Q: | What are the specific proposals on which I am being asked to vote at the Stockholder Meeting? |
| A: | Banyan stockholders are being asked to consider and vote on the following proposals: |
| 1. | Proposal No. 1 — Extension Amendment Proposal — To amend Banyan’s Certificate of Incorporation to extend the date (the “Termination Date”) by which Banyan has to consummate a business combination (the “Charter Extension”) from December 24, 2023 to January 24, 2024 (the “Charter Extension Date”) and to allow Banyan, without another stockholder vote, to elect to extend the Termination Date to consummate a business combination on a monthly basis for up to twelve times by an additional one month each time after the Charter Extension Date, by resolution of the Board, if requested by the Sponsor, and upon five days’ advance notice prior to the applicable Termination Date, until January 24, 2025, or a total of up to thirteen months after the Original Termination Date, unless the closing of a business combination shall have occurred prior thereto (the “Extension Amendment Proposal”). A copy of the proposed amendment is set forth in Annex A to the accompanying proxy statement; and |
| 2. | Proposal No. 2 — Redemption Limitation Amendment Proposal — To amend, Banyan’s Certificate of Incorporation to eliminate from the Certificate of Incorporation the limitation that Banyan may not redeem Public Stock (as defined below) to the extent that such redemption would result in Banyan having net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934, as amended), of less than $5,000,001 (the “Redemption Limitation”) in order to allow Banyan to redeem Public Stock irrespective of whether such redemption would exceed the Redemption Limitation (the “Redemption Limitation Amendment,” and such proposal the “Redemption Limitation Amendment Proposal”). A copy of the proposed amendment is set forth in Annex B to the accompanying proxy statement; and |
| 3. | Proposal No. 3 — Adjournment Proposal — To adjourn the Stockholder Meeting to a later date or dates, if necessary, (i) to permit further solicitation and vote of proxies if, based upon the tabulated vote at the time of the Stockholder Meeting, there are insufficient shares of Class A Common Stock and shares of Class B common stock, par value $0.0001 per share of Banyan (the “Class B Common Stock” and together with the Class A Common Stock, the “Common Stock”) in the capital of Banyan represented (either in person or by proxy) at the time of the Stockholder Meeting to approve the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal or (ii) where the Board has determined it is otherwise necessary (the “Adjournment Proposal”). |
Approval of the Extension Amendment Proposal is a condition to the implementation of the Charter Extension. In addition, Banyan will not proceed with the Charter Extension unless (i) the Redemption Limitation Amendment Proposal is approved or (ii) if Banyan will have at least $5,000,001 of net tangible assets following approval of the Extension Amendment Proposal, after taking into account any redemptions of Public Stock by public stockholders in exchange for their pro rata portion of the funds held in the Trust Account established forin connection with the benefit of our public stockholders with Continental Stock Transfer & Trust Company acting as trustee.
For more information, please see “Proposal No. 1 — The mailing addressExtension Amendment Proposal,” “Proposal No. 2 — The Redemption Limitation Amendment Proposal” and “Proposal No. 3 — The Adjournment Proposal.”
If the Extension Amendment Proposal is approved and the Charter Extension becomes effective, within ten (10) business days of the date of the Stockholder Meeting, the Sponsor (or one or more of its affiliates, members or third-party designees) (the “Lender”) shall make a deposit into the Trust Account of $ per share of Public Stock that is not redeemed in connection with the Stockholder Meeting, in exchange for one or more non-interest bearing, unsecured promissory notes issued by Banyan to the Lender. In addition, if the Extension Amendment Proposal is approved and the Charter Extension becomes effective, in the event that Banyan has not consummated the Business Combination by January 24, 2024, without approval of Banyan’s public stockholders, Banyan may, by resolution of the Board, if requested by the Sponsor, and upon five days’ advance notice prior to the applicable Termination Date, extend the Termination Date up to twelve times, each by one additional month (for a total of up to twelve additional months to complete a business combination), provided that the Lender will deposit into the Trust Account for each month so extended $ per each share of Public Stock that is not redeemed in connection with the Stockholder Meeting for each such monthly extension, for an aggregate deposit of up to $ per each share of Public Stock that is not redeemed in connection with the Stockholder Meeting (if all twelve additional monthly extensions are exercised), in exchange for a non-interest bearing, unsecured promissory note issued by Banyan to the Lender. If Banyan completes a business combination, it will, at the option of the Lender, repay the amounts loaned under the promissory note or convert a portion or all of the amounts loaned under such promissory note into warrants, which warrants will be identical to the Private Placement Warrants. If Banyan does not complete a business combination by the applicable Termination Date, such promissory note will be repaid only from funds held outside of the Trust Account or will be forfeited, eliminated or otherwise forgiven.
After careful consideration, the Board has unanimously determined that the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal and the Adjournment Proposal are in the best interests of Banyan and its stockholders and unanimously recommends that you vote “FOR” or give instruction to vote “FOR” each of these proposals.
The existence of financial and personal interests of our principal executive office is 400 Skokie Blvd, Suite 820, Northbrook, Illinois 60062,directors and our telephone number is (847) 757-3812.
THE VOTE OF STOCKHOLDERS IS IMPORTANT. STOCKHOLDERS ARE URGED TO SUBMIT THEIR PROXIES AS SOON AS POSSIBLE AFTER CAREFULLY REVIEWING THIS PROXY STATEMENT.
| Q: | Am I being asked to vote on a proposal to elect directors? |
| A: | No. Holders of Public Stock are not being asked to vote on the election of directors at this time. |
| Q: | Are the proposals conditioned on one another? |
| A: | Approval of the Extension Amendment Proposal is a condition to the implementation of the Charter Extension. In addition, Banyan will not proceed with the Charter Extension unless (i) the Redemption Limitation Amendment Proposal is approved or (ii) if Banyan will have at least $5,000,001 of net tangible assets following approval of the Extension Amendment Proposal, after taking into account the Redemptions. |
If the Charter Extension is implemented and one or more Banyan stockholders elect to redeem their Public Stock pursuant to the redemption right, Banyan will have one vote per proposalremove from the Trust Account and deliver to the holders of such redeemed Public Stock an amount equal to the pro rata portion of funds available in the Trust Account with respect to such redeemed Public Stock, including interest earned on the funds held in the Trust Account (net of taxed payable thereon), if any, and retain the remainder of the funds in the Trust Account for each share you owned at that time. Our warrants doBanyan’s use in connection with consummating the Business Combination, subject to the redemption rights of holders of Public Stock in connection with the Business Combination.
The Adjournment Proposal is conditioned on Banyan not carry voting rights.
| Q: | Why is Banyan proposing the Extension Amendment Proposal? |
| A: | Banyan’s Certificate of Incorporation provides for the return of the Initial Public Offering proceeds held in trust to the holders of Public Stock sold in the Initial Public Offering if there is no qualifying business combination consummated on or before the Original Termination Date. The purpose of the Extension Amendment Proposal is to allow Banyan additional time to complete the Business Combination. |
As previously disclosed in the Current Report on Form 8-K filed with SEC on June 23, 2023, Banyan, Pinstripes and Panther Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Banyan, entered into the Business Combination Agreement, contemplating several transactions in connection with which Banyan will become the parent company of Pinstripes. For more information about the Business Combination, refer to our registration statement on Form S-4 initially filed with the Securities and Exchange Commission on September 11, 2023, as amended from time to time.
Without the Charter Extension, Banyan believes that it may not be able to complete the Business Combination on or before the Original Termination Date. If that were to occur, Banyan would be forced to liquidate. Banyan will not proceed with the Charter Extension if it completes the Business Combination on or before the Termination Date.
| Q: | Why is Banyan proposing the Redemption Limitation Amendment Proposal? |
| A: | Banyan’s Certificate of Incorporation provides that that Banyan may not redeem Public Stock to the extent that such redemption would result in Banyan having net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act)) of less than $5,000,001. Without the Redemption Limitation Amendment, Banyan may not be able to implement the Charter Extension or complete the Business Combination if following redemptions in connection with the Charter Extension or upon the consummation of the Business Combination Banyan has net tangible assets of less than $5,000,001 even if stockholders approve the Charter Extension or if all contractual conditions to closing the Business Combination are met. |
| Q: | Why is Banyan proposing the Adjournment Proposal? |
| A: | If either the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal is not approved by Banyan’s stockholders or if the Board has determined that it is otherwise necessary, Banyan may put the Adjournment Proposal to a vote in order to seek additional time to obtain sufficient votes in support of the Charter Extension and the Redemption Limitation Amendment. If the Adjournment Proposal is not approved by Banyan’s stockholders, the Board may not be able to adjourn the Stockholder Meeting to a later date or dates in the event that there are insufficient votes at the time of the Stockholder Meeting to approve the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal. |
Banyan reserves the right at least 65% of our outstanding shares of common stock.
| Q: | What constitutes a quorum? |
| A: | A quorum of our stockholders is necessary to hold a valid meeting. The presence, in person or by proxy, of stockholders holding a majority of the Common Stock entitled to vote at the Stockholder Meeting constitutes a quorum at the Stockholder Meeting. Abstentions will be considered present for the purposes of establishing a quorum. The Sponsor, George Courtot, Bruce Lubin, Otis Carter, Kimberley Annette Rimsza, Matt Jaffee and Brett Biggs (collectively, the “Sponsor Holders”), who beneficially own 64.4% of the issued and outstanding shares of Common Stock as of the Record Date, will count towards this quorum. As a result, as of the Record Date, in addition to the shares of the Sponsor, no additional shares of Common Stock held by public stockholders would be required to be present at the Stockholder Meeting to achieve a quorum. Because the Extension Amendment Proposal and the Adjournment Proposal are “non-routine” matters, banks, brokers and other nominees will not have authority to vote on any proposals unless instructed. Therefore, such broker non-votes will not count towards quorum at the Stockholder Meeting. In the absence of a quorum, the chairman of the Stockholder Meeting has the power to adjourn the Stockholder Meeting. |
| Q: | What vote is required to approve the proposals presented at the Stockholder Meeting? |
| A: | The approval of each of the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal requires the affirmative vote of at least sixty-five percent (65%) of the issued and outstanding shares of Common Stock. |
Approval of the Adjournment Proposal requires the affirmative vote of at least a majority of the votes cast by the stockholdersholders of the issued and outstanding shares of Common Stock who are present virtuallyin person or represented by proxy and entitled to vote thereon at the special meeting.
| Q: | How will the Sponsor and Banyan’s directors and officers vote? |
| A: | The Sponsor and Banyan’s directors and officers intend to vote any Common Stock over which they have voting control in favor of the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal and the Adjournment Proposal. |
The Sponsor Holders are not entitled to redeem any Common Stock held by them in connection with the determination of whether a valid quorum is established. With respect to each of the CharterExtension Amendment Proposal and the TrustRedemption Limitation Amendment Proposal. On the Record Date, the Sponsor Holders beneficially owned and were entitled to vote an aggregate of 7,245,000 shares of Common Stock, representing 64.4% of Banyan’s issued and outstanding shares of Common Stock.
| Q: | Who is Banyan’s Sponsor? |
| A: | Banyan’s sponsor is Banyan Acquisition Sponsor LLC, a Delaware limited liability company. The Sponsor currently owns 2,000,000 shares of Class A Common Stock, 5,095,375 shares of Class B Common Stock and 10,860,000 Private Placement Warrants of Banyan. The Sponsor is governed by a two-member board of managers composed of Jerry Hyman and Keith Jaffee. The Sponsor is not “controlled” (as defined in 31 CFR 800.208) by a foreign person, such that the Sponsor’s involvement in a business combination would result in a “covered transaction” (as defined in 31 CFR 800.213); any non-U.S. investors in the Sponsor are strictly passive with no “control” or “covered investment” rights (as defined in 31 CFR §§ 800.208, 211). However, it is possible that non-U.S. persons could be involved in our business combination, which may increase the risk that our business combination becomes subject to regulatory review, including review by the Committee on Foreign Investment in the United States (“CFIUS”), and that restrictions, limitations or conditions will be imposed by CFIUS. If our business combination with a U.S. business is subject to CFIUS review, the scope of which was expanded by the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”), to include certain non-passive, non-controlling investments in sensitive U.S. businesses and certain acquisitions of real estate even with no underlying U.S. business. FIRRMA, and subsequent implementing regulations that are now in force, also subjects certain categories of investments to mandatory filings. If our potential business combination with a U.S. business falls within CFIUS’s jurisdiction, we may determine that we are required to make a mandatory filing or that we will submit a voluntary notice to CFIUS, or to proceed with the Business Combination without notifying CFIUS and risk CFIUS intervention, before or after closing the Business Combination. CFIUS may decide to block or delay our business combination, impose conditions to mitigate national security concerns with respect to such business combination or order us to divest all or a portion of a U.S. business of the combined company without first obtaining CFIUS clearance, which may limit the attractiveness of or prevent us from pursuing certain initial business combination opportunities that we believe would otherwise be beneficial to us and our stockholders. As a result, the pool of potential targets with which we could complete a business combination may be limited and we may be adversely affected in terms of competing with other special purpose acquisition companies which do not have similar foreign ownership issues. A failure to notify CFIUS of a transaction where such notification was required or otherwise warranted based on the national security considerations presented by an investment target may expose the Sponsor and/or the combined company to legal penalties, costs, and/or other adverse reputational and financial effects, thus potentially diminishing the value of the combined company. In addition, CFIUS is actively pursuing transactions that were not notified to it and may ask questions regarding, or impose restrictions or mitigation on, a business combination post-closing. |
Moreover, the process of government review, whether by the CFIUS or otherwise, could be lengthy and we have limited time to complete our business combination. If we cannot complete a business combination by December 24, 2023 (or up to January 24, 2025 if extended) because the transaction is still under review or because our business combination is ultimately prohibited by CFIUS or another U.S. government entity, we may be required to liquidate. If we liquidate, our public stockholders may only receive $ per share of Public Stock, and our warrants will expire worthless. This will also cause you to lose the investment opportunity in a target company and the chance of realizing future gains on your investment through any price appreciation in the combined company.
| Q: | Why should I vote “FOR” the Extension Amendment Proposal? |
| A: | Banyan believes stockholders will benefit from Banyan consummating the Business Combination and is proposing the Extension Amendment Proposal to extend the date by which Banyan has to complete the Business Combination until the Charter Extension Date. Without the Charter Extension, Banyan believes that Banyan may not be able to complete the Business Combination on or before the Original Termination Date. If that were to occur, Banyan would be forced to liquidate. |
| Q | Why should I vote “FOR” the Redemption Limitation Amendment Proposal? |
| A: | Banyan believes stockholders will benefit from Banyan implementing the Charter Extension and is proposing the Redemption Limitation Amendment Proposal to delete the Redemption Limitation. If the Redemption Limitation Amendment Proposal is not approved and there are significant requests for redemption (including as a result of the Redemption Limitation Amendment Proposal) such that Banyan’s net tangible assets would be less than $5,000,001 following the redemptions, we would be unable to implement the Charter Extension. |
| Q: | What if I do not want to vote “FOR” the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal or the Adjournment Proposal? |
| A: | If you do not want the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal or the Adjournment Proposal to be approved, you may “ABSTAIN,” not vote, or vote “AGAINST” such proposal. |
If you attend the Stockholder Meeting in person or by proxy, you may vote “AGAINST” the Extension Amendment Proposal, abstentionsthe Redemption Limitation Amendment Proposal or the Adjournment Proposal, and broker non-votesyour Common Stock will be counted for the purposes of determining whether the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal or the Adjournment Proposal (as the case may be) are approved.
However, if you fail to attend the Stockholder Meeting in person or by proxy, or if you do attend the Stockholder Meeting in person or by proxy but you “ABSTAIN” or otherwise fail to vote at the Stockholder Meeting, your Common Stock will not be counted for the purposes of determining whether the Adjournment Proposal is approved, and your Common Stock which are not voted at the Stockholder Meeting will have no effect on the outcome of such vote. If you “ABSTAIN” or otherwise fail to vote at the Stockholder Meeting, this will have the same effect as a vote “AGAINST” votes. With respect tothe Extension Amendment Proposal and the Redemption Limitation Amendment Proposal.
If the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal is approved, the Adjournment Proposal abstentions will not be presented for a vote.
| Q: | How are the funds in the Trust Account currently being held? |
| A: | With respect to the regulation of SPACs like Banyan, on March 30, 2022, the SEC issued the SPAC Proposed Rules relating to, among other items, the extent to which SPACs could become subject to regulation under the Investment Company Act, including a proposed rule that would provide SPACs a safe harbor from treatment as an investment company if they satisfy certain conditions that limit a SPAC’s duration, asset composition, business purpose and activities. |
With regard to the SEC’s investment company proposals included in the SPAC Proposed Rules, while the funds in the Trust Account have, since Banyan’s Initial Public Offering, been held only in U.S. government treasury bills with a maturity of 185 days or less or in money market funds investing solely in U.S. Treasuries, to mitigate the same effectrisk of being viewed as “AGAINST” votes and broker non-votes will have no effect onoperating an unregistered investment company (including pursuant to the approvalsubjective test of Section 3(a)(1)(A) of the Adjournment Proposal.
| Q: | Will you seek any further extensions to liquidate the Trust Account? |
| A: | Other than as described in this proxy statement, Banyan does not currently anticipate seeking any further extension to consummate a business combination, but may do so in the future. |
| Q: | What happens if the Extension Amendment Proposal is not approved? |
| A: | If there are insufficient votes to approve the Extension Amendment Proposal, Banyan may put the Adjournment Proposal to a vote in order to seek additional time to obtain sufficient votes in support of the Charter Extension. |
If the Extension Amendment Proposal is essential tonot approved at the overall implementation ofStockholder Meeting or at any adjournment thereof and the Board’s plan to allow us more time to complete a Business Combination. Approval of the Charter Amendment Proposal is a condition to the implementation of the Extension Amendments. A copy of the proposed amendment to our charter to effectuate the Charter Amendment is attached to this proxy statement as Annex A.
The Sponsor Holders waived their rights to mitigate the current uncertainty surrounding the implementation of the Inflation Reduction Act of 2022, we have decided thatparticipate in the event that the Proposals are approved and implemented as described herein, funds in trust, including any interest thereon, will not be used to pay for any excise tax liabilitiesliquidation distribution with respect to any future redemptions that occur prior to or in connection with a Business Combination and which result from the implementation of the Inflation Reduction Act of 2022. Because the excise tax would be payable by us, and not by the redeeming holder, the mechanics of any required payment of the excise tax have not been determined. The foregoing could cause a reduction in the cash available on hand to complete a Business Combination and in our ability to complete a Business Combination.
| Q: | If the Extension Amendment Proposal is approved, what happens next? |
| A: | If the Extension Amendment Proposal is approved, Banyan will file the Charter Amendment with the Delaware Secretary of State and will continue to attempt to consummate the Business Combination until the applicable Termination Date. |
If the Extension Amendment Proposal is approved and the Charter Extension is implemented, the removal from the Trust Account of Class A Common Stock they may acquire, pursuant to a conversion of shares of Class B Common Stock priorthe amount equal to the completionpro rata portion of a Business Combination, which conversion will be permitted if the Charter Amendment is approved, or otherwise)funds available in connection with our completion of a Business Combination or a stockholder vote to amend our charter (A) to modify the substance or timing of our obligation to allow redemption in connection with our Business Combination or to redeem 100% of shares of Class A Common Stock if we do not complete our Business Combination within 15 months from the closing of the IPO (or up to 21 months from the closing of this offering if we extend the time to complete a Business Combination as described in the IPO prospectus), including the vote on the Extension Proposals, or (B) with respect to any other provision relating to stockholders’ rights or pre-Business Combination activity, and they have waived their rights to liquidating distributions from the Trust Account with respect to any shares of Class B Commonsuch redeemed Public Stock they hold if we fail to complete a Business Combination within the prescribed timeframe, including any extended time resulting from the Charter Amendment, if the Extension Proposals are approved at the special meeting (although they will be entitled to liquidating distributions from the Trust Account with respect to any shares of Class A Common Stock that they hold and were issued in the IPO (but not any shares issued upon conversion of the Class B Common Stock) if we fail to complete our Business Combination within the prescribed time frame).
| Q: | If I vote for or against the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal, do I need to request that my shares be redeemed? |
| A: | Yes. Whether you vote “for” or “against” the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal, or do not vote at all, you will need to submit a redemption request for your shares if you choose to redeem. |
| Q: | What amount will holders receive upon consummation of a business combination or liquidation if the Extension Amendment Proposal is approved? |
| A: | If the Extension Amendment Proposal is approved and the Charter Extension becomes effective, within ten (10) business days of the date of the Stockholder Meeting, the Lender shall make a deposit into the Trust Account (as defined below) of $ per share of Public Stock that is not redeemed in connection with the Stockholder Meeting, in exchange for one or more non-interest bearing, unsecured promissory notes issued by Banyan to the Lender. In addition, if the Extension Amendment Proposal is approved and the Charter Extension becomes effective, in the event that Banyan has not consummated a business combination by January 24, 2024, without approval of Banyan’s public stockholders, Banyan may, by resolution of the Board, if requested by the Sponsor, and upon five days’ advance notice prior to the applicable Termination Date, extend the Termination Date up to twelve times, each by one additional month (for a total of up to twelve additional months to complete a business combination), provided that the Lender will deposit into the Trust Account for each month so extended $ per each share of Public Stock that is not redeemed in connection with the Stockholder Meeting for each such monthly extension, for an aggregate deposit of up to $ per each share of Public Stock that is not redeemed in connection with the Stockholder Meeting (if all twelve additional monthly extensions are exercised), in exchange for a non-interest bearing, unsecured promissory note issued by Banyan to the Lender. If Banyan completes a business combination, it will, at the option of the Lender, repay the amounts loaned under the promissory note or convert a portion or all of the amounts loaned under such promissory note into warrants, which warrants will be identical to the Private Placement Warrants (as defined below). If Banyan does not complete a business combination by the applicable Termination Date, such promissory note will be repaid only from funds held outside of the Trust Account or will be forfeited, eliminated or otherwise forgiven. |
| Q: | What happens if the Redemption Limitation Amendment Proposal is not approved? |
| A: | If there are insufficient votes to approve the Redemption Limitation Amendment Proposal, Banyan may put the Adjournment Proposal to a vote in order to seek additional time to obtain sufficient votes in support of the Redemption Limitation Amendment. |
If the Charter Amendment Proposal is approved, and the Extension Amendments are implemented, public stockholders may elect to redeem their shares for a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to us to pay our taxes, divided by the number of then outstanding shares of Class A Common Stock.
Additionally, in the event that the Redemption Limitation Amendment Proposal is not approved and we receive notice of redemptions of Public Stock approaching or in excess of the Redemption Limitation, we and/or the Sponsor may take action to increase our net tangible assets to avoid exceeding the Redemption Limitation, which may include, at our and our Sponsor’s option and in our and its sole discretion, any, several or all of the following actions: (a) attempting to secure waivers of certain of our significant liabilities, including the deferred underwriting fees, and (b) entering into non-redemption agreements with certain of our significant stockholders.
If the Redemption Limitation Amendment Proposal is not approved and the Redemption Limitation is exceeded, either because we do not take action to increase our net tangible assets or because our attempt to do so is not successful, then we will not proceed with the Charter Extension and we will not redeem any Public Stock. In such case, Public Stock which a public stockholder elects to redeem but which are not redeemed shall be returned to such public stockholder or such public stockholder’s account and such public stockholder will retain the right to have their Public Stock redeemed for cash if Banyan has not completed an initial business combination by the Termination Date.
The Sponsor Holders waived their rights to participate in any liquidation distribution with respect to the 7,245,000 Founder Shares held by them.
| Q: | Am I being asked to vote on the Business Combination at this Stockholder Meeting? |
| A: | No. You are not being asked to vote on the Business Combination at this time. If the Charter Extension is implemented and you do not elect to redeem your shares of Public Stock, provided that you are a stockholder on the record date for the stockholder meeting to consider the Business Combination, you will be entitled to vote on the Business Combination when it is submitted to stockholders and will retain the right to redeem your shares of Public Stock for cash in connection with the Business Combination or liquidation. |
| Q: | Will how I vote affect my ability to exercise redemption rights? |
| A: | No. You may exercise your redemption rights whether or not you are a holder of Public Stock on the Record Date (so long as you are a holder at the time of exercise), or whether you are a holder and vote your Public Stock on the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal (for or against) or any other proposal described in this proxy statement. As a result, the Charter Extension can be approved by stockholders who will redeem their Public Stock and no longer remain stockholders, leaving stockholders who choose not to redeem their Public Stock holding shares in a company with a potentially less liquid trading market, fewer stockholders, potentially less cash and the potential inability to meet the listing standards of the NYSE. |
| Q: | May I change my vote after I have mailed my signed proxy card? |
| A: | Yes. Stockholders may send a later-dated, signed proxy card to Banyan Acquisition Corporation, at 400 Skokie Blvd., Suite 820, Northbrook, Illinois, 60062, so that it is received by Banyan prior to the vote at the Stockholder Meeting (which is scheduled to take place on December , 2023) or attend the virtual Stockholder Meeting and vote electronically. Stockholders also may revoke their proxy by sending a notice of revocation to Banyan’s Chief Executive Officer, which must be received by Banyan’s Chief Executive Officer prior to the vote at the Stockholder Meeting. However, if your shares are held in “street name” by your broker, bank or another nominee, you must contact your broker, bank or other nominee to change your vote. |
| Q: | How are votes counted? |
| A: | Votes will be counted by the inspector of election appointed for the Stockholder Meeting, who will separately count “FOR” and “AGAINST” votes and abstentions. The approval of each of the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal requires the affirmative vote of at least sixty-five percent (65%) of the issued and outstanding shares of Common Stock. Approval of the Adjournment Proposal requires the affirmative vote of at least a majority of the votes cast by stockholders represented virtually or by proxy and entitled to vote thereon at the Stockholder Meeting. |
Stockholders who attend the Stockholder Meeting, either in person or by proxy, will be counted (and the number of Common Stock held by such stockholders will be counted) for the purposes of determining whether a quorum is present at the Stockholder Meeting. The presence, in person or by proxy, of stockholders holding a majority of the Common Stock entitled to vote at the Stockholder Meeting constitutes a quorum at the Stockholder Meeting.
With respect to the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal, abstentions will have the same effect as a vote “AGAINST” the proposal. As this proposal is not a “routine” matter, brokers will not be permitted to exercise discretionary voting on this proposal.
With respect to the Adjournment Proposal, abstentions will have no effect on the approval of the proposal. As this proposal is not a “routine” matter, brokers will not be permitted to exercise discretionary voting on this proposal.
| Q: | If my shares are held in “street name,” will my broker, bank or nominee automatically vote my shares for me? |
| A: | If your shares are held in “street name” in a stock brokerage account or by a broker, bank or other nominee, you must provide the record holder of your shares with instructions on how to vote your shares. Please follow the voting instructions provided by your broker, bank or other nominee. Please note that you may not vote shares held in “street name” by returning a proxy card directly to Banyan or by voting online at the Stockholder Meeting unless you provide a “legal proxy,” which you must obtain from your broker, bank or other nominee. |
Under the applicable rules, brokers who hold shares in “street name” for a beneficial owner of those shares typically have the authority to vote in their discretion on “routine” proposals when they have not received instructions from beneficial owners. However, brokers are not permitted to exercise their voting discretion with respect to the approval of matters that are determined to be “non-routine” without specific instructions from the beneficial owner. The Extension Amendment Proposal, Redemption Limitation Amendment Proposal and Adjournment Proposal are “non-routine” matters and therefore, brokers are not permitted to exercise their voting discretion with respect to these proposals.
If you are a Banyan stockholder holding your shares in “street name” and you do not instruct your broker, bank or other nominee on how to vote your shares, your broker, bank or other nominee will not vote your shares on the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal or the Adjournment Proposal. Accordingly, your bank, broker, or other nominee can vote your shares on the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal or the Adjournment Proposal at the Stockholder Meeting only if you provide instructions on how to vote. You should instruct your broker to vote your shares as soon as possible in accordance with directions you provide.
| Q: | Does the Board recommend voting “FOR” the approval of the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal and the Adjournment Proposal? |
| A: | Yes. After careful consideration of the terms and conditions of each of the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal and the Adjournment Proposal, the Board has determined that each of the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal and the Adjournment Proposal is in the best interests of Banyan and its stockholders. The Board unanimously recommends that Banyan’s stockholders vote “FOR” each of the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal and the Adjournment Proposal. |
| Q: | What interests do Banyan’s directors and officers have in the approval of the Extension Amendment Proposal? |
| A: | Banyan’s directors and officers have interests in the Extension Amendment Proposal that may be different from, or in addition to, your interests as a stockholder. These interests include, among others, ownership, directly or indirectly through the Sponsor, of Common Stock and Private Placement Warrants. See the section entitled “Proposal No. 1 — The Extension Amendment Proposal — Interests of the Sponsor and Banyan’s Directors and Officers” in this proxy statement. |
| Q: | What interests do Banyan’s directors and officers have in the approval of the Redemption Limitation Amendment Proposal? |
| A: | Banyan’s directors and officers have interests in the Redemption Limitation Amendment Proposal that may be different from, or in addition to, your interests as a stockholder. These interests include, among others, ownership, directly or indirectly through the Sponsor, of Common Stock and Private Placement Warrants. See the section entitled “Proposal No 2 — The Redemption Limitation Amendment Proposal — Interests of the Sponsor, Banyan’s Directors, and Officers” in this proxy statement. |
| Q: | Do I have appraisal rights if I object to the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal? |
| A: | No. There are no appraisal rights available to Banyan’s stockholders in connection with the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal. However, you may elect to have your shares redeemed in connection with the adoption of the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal as described under “How do I exercise my redemption rights” below. |
| Q: | If I am a Public Warrant (defined below) holder, can I exercise redemption rights with respect to my Public Warrants? |
| A: | No. The holders of public warrants issued in connection with the Initial Public Offering (with a whole warrant representing the right to acquire one share of Class A Common Stock at an exercise price of $11.50 per share) (the “Public Warrants”) have no redemption rights with respect to such Public Warrants. |
| Q: | What do I need to do now? |
| A: | You are urged to read carefully and consider the information contained in this proxy statement and to consider how the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal and the Adjournment Proposal will affect you as a stockholder. You should then vote as soon as possible in accordance with the instructions provided in this proxy statement and on the enclosed proxy card or, if you hold your shares through a brokerage firm, bank or other nominee, on the voting instruction form provided by the broker, bank or nominee. |
| Q: | How do I exercise my redemption rights? |
| A: | If you are a holder of Public Stock and wish to exercise your right to redeem your Public Stock, you must: |
| I. | (a) hold Public Stock or (b) hold Public Stock through Units and elect to separate your Units into the underlying Public Stock and Public Warrants prior to exercising your redemption rights with respect to the Public Stock; |
| II. | prior to 5:00 p.m., Eastern Time, on December , 2023 (two business days prior to the initially scheduled date of the Stockholder Meeting) (the “Redemption Deadline”) (a) submit a written request to the Transfer Agent that Banyan redeem all or a portion of your Public Stock for cash and (b) identify yourself as the beneficial holder of the Public Stock and provide your legal name, phone number and address; and |
| III. | deliver your Public Stock to the Transfer Agent, physically or electronically through the Depository Trust Company (“DTC”). |
The address of the Transfer Agent is listed under the question “Who can help answer my questions?” below.
Holders of Units must elect to separate the underlying Public Stock and Public Warrants prior to exercising redemption rights with respect to the Public Stock. If holders hold their Units in an account at a brokerage firm or bank, holders must notify their broker or bank that they elect to separate the Units into the underlying Public Stock and Public Warrants, or if a holder holds Units registered in its own name, the holder must contact the Transfer Agent directly and instruct it to do so.
In connection with the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal and contingent upon the effectiveness of the implementation of the Charter Extension, any holder of Public Stock will be entitled to request that their Public Stock be redeemed for a per share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account calculated as of two business days prior to the Stockholder Meeting, including interest (net of taxes payable), divided by the number of then issued and outstanding shares of Public Stock. As of December , 2023, the most recent practicable date prior to the date of this proxy statement, this would have amounted to approximately $ per share of Public Stock.
However, the proceeds deposited in the Trust Account could become subject to the claims of our creditors, if any, which could have priority over the claims of our public stockholders. Therefore, the per share distribution from the Trust Account in such a situation may be less than originally anticipated due to such claims. We anticipate that the funds to be distributed to public stockholders electing to redeem their Public Stock will be distributed promptly after the Stockholder Meeting.
Any request for Redemption, once made by a holder of Public Stock, may be withdrawn at any time until the Redemption Deadline, and thereafter, with the approval of the Board. If you deliver your shares for Redemption to the Transfer Agent and later decide prior to the Redemption Deadline not to elect Redemption, you may request that Banyan instruct the Transfer Agent to return the shares (physically or electronically). You may make such request by contacting the Transfer Agent at the phone number or address listed at the end of this section. We will be required to honor such request only if made prior to the deadline for exercising redemption requests.
No request for Redemption will be honored unless the holder’s shares have been delivered (either physically or electronically) to the Transfer Agent by 5:00 p.m., Eastern Time, on December , 2023 (two business days prior to the initially scheduled date of the Stockholder Meeting).
If a holder of Public Stock properly makes a request for Redemption and the Public Stock is delivered as described above, then, Banyan will redeem Public Stock for a pro rata portion of funds deposited in the Trust Account, calculated as of two business days prior to the Stockholder Meeting. If you are a holder of Public Stock and you exercise your redemption rights, it will not result in the loss of any Public Warrants that you may hold.
If the Stockholder Meeting is abandoned for any reason, then holders of Public Stock shall not have the right to redeem their Public Stock at this time.
| Q: | What are the U.S. federal income tax consequences of exercising my redemption rights? |
| A: | The U.S. federal income tax consequences of exercising your redemption rights will depend on your particular facts and circumstances. Accordingly, you are urged to consult your tax advisor to determine your tax consequences from the exercise of your redemption rights, including the applicability and effect of U.S. federal, state, local and non-U.S. income and other tax laws in light of your particular circumstances. For additional discussion of certain material U.S. federal income tax considerations with respect to the exercise of these redemption rights, see “Certain Material U.S. Federal Income Tax Considerations for Stockholders Exercising Redemption Rights.” |
| Q: | What should I do if I receive more than one set of voting materials for the Stockholder Meeting? |
| A: | You may receive more than one set of voting materials for the Stockholder Meeting, including multiple copies of this proxy statement and multiple proxy cards or voting instruction cards. For example, if you hold your shares in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold shares. If you are a holder of record and your shares are registered in more than one name, you will receive more than one proxy card. Please complete, sign, date and return each proxy card and voting instruction card that you receive in order to cast your vote with respect to all of your shares. |
| Q: | Who will solicit and pay the cost of soliciting proxies for the Stockholder Meeting? |
| A: | Banyan will pay the cost of soliciting proxies for the Stockholder Meeting. Banyan has engaged Morrow Sodali LLC (“Morrow Sodali”) to assist in the solicitation of proxies for the Stockholder Meeting. Banyan will also reimburse banks, brokers and other custodians, nominees and fiduciaries representing beneficial owners of Public Stock for their expenses in forwarding soliciting materials to beneficial owners of Public Stock and in obtaining voting instructions from those owners. The directors, officers and employees of Banyan may also solicit proxies by telephone, by facsimile, by mail or on the Internet. They will not be paid any additional amounts for soliciting proxies. |
| Q: | Who can help answer my questions? |
| A: | If you have questions about the proposals or if you need additional copies of this proxy statement or the enclosed proxy card you should contact: |
Morrow Sodali LLC
333 Ludlow Street, 5th Floor, South Tower
Stamford, CT 06902
Individuals call toll-free (800) 662-5200
Banks and brokers call (203) 658-9400
Email: .info@investor.morrowsodali.com
You also may obtain additional information about Banyan from documents filed with the SEC by following the instructions in the section titled “Where You Can Find More Information.” If you are a holder of Public Stock and you intend to seek Redemption of your shares, you will need to deliver your Public Stock (either physically or electronically) to the Transfer Agent at the address below prior to 5:00 p.m., Eastern Time, on December , 2023 (two business days prior to the initially scheduled date of the Stockholder Meeting). If you have questions regarding the certification of your position or delivery of your shares, please contact:
Continental Stock Transfer & Trust Company
One State Street, 30th Floor
New York, New York 10004
Attn: Mark Zimkind
E-mail: mzimkind@continentalstock.com
SPECIAL MEETING OF BANYAN STOCKHOLDERS
This proxy statement is being provided to Banyan stockholders as part of a solicitation of proxies by the Board for use at the special meeting of Banyan stockholders to be held on December , 2023, and at any adjournment thereof. This proxy statement contains important information regarding the Stockholder Meeting, the proposals on which you are being asked to vote and information you may find useful in determining how to vote and voting procedures.
This proxy statement is being first mailed on or about , 2023 to all stockholders of record of Banyan as of the Record Date for the Stockholder Meeting. Stockholders of record who owned Common Stock at the close of business on the Record Date are entitled to receive notice of, attend and vote at the Stockholder Meeting.
Date, Time and Place of Stockholder Meeting
The Stockholder Meeting will be held on December , 2023, at a.m., Eastern Time, as a virtual meeting, or at such other time, on such other date and at such other place to which the meeting may be postponed or adjourned.
We are planning for the Stockholder Meeting to be held virtually over the internet. We encourage you to attend the Stockholder Meeting virtually. You can participate in the meeting, vote, and submit questions via live webcast by visiting www.cstproxy.com/ . Please see “Questions and Answers about the Stockholder Meeting — How do I attend the virtual Stockholder Meeting?” for more information.
You can pre-register to attend the virtual Stockholder Meeting starting December , 2023, at 9:00 a.m., Eastern Time (two business days prior to the meeting date). Enter the URL address into your browser www.cstproxy.com/ , enter your control number, name and email address. Once you pre- register you can vote or enter questions in the chat box. At the start of the Stockholder Meeting you will need to log in again using your control number and will also be prompted to enter your control number if you vote during the Stockholder Meeting.
Stockholders who hold their investments through a bank or broker, will need to contact the Transfer Agent to receive a control number. If you plan to vote at the Stockholder Meeting you will need to have a legal proxy from your bank or broker or if you would like to join and not vote, the Transfer Agent will issue you a guest control number with proof of ownership. Either way you must contact the Transfer Agent for specific instructions on how to receive the control number. The Transfer Agent can be contacted at 917-262-2373, or via email at proxy@continentalstock.com. Please allow up to 72 hours prior to the meeting for processing your control number.
If you do not have access to the Internet, you can listen only to the meeting by dialing (or +1 if you are located outside the United States and Canada (standard rates apply)) and when prompted enter the pin number #. Please note that you will not be able to vote or ask questions at the Stockholder Meeting if you choose to participate telephonically.
The Proposals at the Stockholder Meeting
At the Stockholder Meeting, Banyan stockholders will consider and vote on the following proposals:
| 1. | Proposal No. 1 — Extension Amendment Proposal — To amend Banyan’s Certificate of Incorporation to extend the Termination Date by which Banyan has to consummate a business combination from the Original Termination Date to the Charter Extension Date. A copy of the proposed amendment is set forth in Annex A to this proxy statement; and |
| 2. | Proposal No. 2 – Redemption Limitation Amendment Proposal – To amend Banyan’s Certificate of Incorporation to eliminate from the Certificate of Incorporation the limitation that Banyan may not redeem Public Stock to the extent that such redemption would result in Banyan having net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) of less than $5,000,001 in order to allow Banyan to redeem Public Stock irrespective of whether such redemption would exceed the Redemption Limitation. A copy of the proposed amendment is set forth in Annex B to this proxy statement; and |
| 3. | Proposal No. 3 — Adjournment Proposal — To adjourn the Stockholder Meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies if, based upon the tabulated vote at the time of the Stockholder Meeting, there are insufficient shares of Common Stock, in the capital of Banyan represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholder Meeting or at the time of the Stockholder Meeting to approve the Extension Amendment Proposal. |
If the Extension Amendment Proposal is approved and the Charter Extension becomes effective, within ten (10) business days of the date of the Stockholder Meeting, the Lender shall make a deposit into the Trust Account (as defined below) of $ per share of Public Stock that is not redeemed in connection with the Stockholder Meeting, in exchange for one or more non-interest bearing, unsecured promissory notes issued by Banyan to the Lender. In addition, if the Company winds up. WeExtension Amendment Proposal is approved and the Charter Extension becomes effective, in the event that Banyan has not consummated a business combination by January 24, 2024, without approval of Banyan’s public stockholder , Banyan may, by resolution of the Board, if requested by the Sponsor, and upon five days’ advance notice prior to the applicable Termination Date, extend the Termination Date up to twelve times, each by one additional month (for a total of up to twelve additional months to complete a business combination), provided that the Lender will paydeposit into the costsTrust Account for each month so extended $ per each share of liquidationPublic Stock that is not redeemed in connection with the Stockholder Meeting for each such monthly extension, for an aggregate deposit of up to $ per each share of Public Stock that is not redeemed in connection with the Stockholder Meeting (if all twelve additional monthly extensions are exercised), in exchange for a non-interest bearing, unsecured promissory note issued by Banyan to the Lender. If Banyan completes a business combination, it will, at the option of the Lender, repay the amounts loaned under the promissory note or convert a portion or all of the amounts loaned under such promissory note into warrants, which warrants will be identical to the Private Placement Warrants (as defined below). If Banyan does not complete a business combination by the applicable Termination Date, such promissory note will be repaid only from our remaining assetsfunds held outside of the Trust Account.
If the Trust Amendment is Approved
Voting Power; Record Date
As a stockholder of Banyan, you have a right to vote on certain matters affecting Banyan. The proposals that will be presented at the Stockholder Meeting and upon which you are being asked to vote are summarized above and fully set forth in this proxy statement. You will be entitled to vote or direct votes to be cast at the Stockholder Meeting if you owned Common Stock at the close of business on December , 2023, which is the Record Date for the Stockholder Meeting. You are entitled to one vote for each share of Common Stock that you owned as of the close of business on the Record Date. If your shares are held in “street name” or are in a margin or similar account, you should contact your broker, bank or other nominee to ensure that votes related to the shares you beneficially own are properly counted. On the Record Date, there were 11,243,687 issued and outstanding shares of Common Stock, of which 3,998,687 shares of Class A Common Stock were held by public stockholders and 2,000,000 were held by the Sponsor and 5,245,000 shares of Class B Common Stock were held by the Sponsor Holders.
Recommendation of the Board
THE BOARD UNANIMOUSLY RECOMMENDS
THAT YOU VOTE “FOR” EACH OF THE PROPOSALS
Quorum
The presence, in person or by proxy, of stockholders holding a majority of the Common Stock entitled to vote at the Stockholder Meeting constitutes a quorum at the Stockholder Meeting. Abstentions will be considered present for the purposes of establishing a quorum. The Sponsor Holders, who own 64.4% of the issued and outstanding shares of Common Stock as of the Record Date, will count towards this quorum. As a result, as of the Record Date, no additional shares of Common Stock held by public stockholders would be required to be present at the Stockholder Meeting to achieve a quorum.
Abstentions
Abstentions will be considered present for the purposes of establishing a quorum but will not be disbursed except toconstitute votes cast at the extent any redemptions are made in connection withStockholder Meeting and therefore will have the special meeting, in connection with our completion ofsame effect as a Business Combination or in connection with our liquidation if we do not complete a Business Combination byvote “AGAINST” the Amended Extended Date. We will then continue to work to consummate a Business Combination byExtension Amendment Proposal and the Amended Extended Date.
Under the applicable rules, if a stockholder holds their shares in “street” name through a bank, broker or other nominee and the stockholder does not instruct their broker, bank or other nominee how to vote their shares on a proposal, the broker, bank or other nominee has the authority to vote the shares in its discretion on certain “routine” matters. However, banks, brokers and other nominees are not authorized to exercise their voting discretion on any “non-routine” matters. This can result in a “broker non-vote,” which occurs on a proposal when (i) a bank, broker or other nominee has discretionary authority to vote on one or more “routine” proposals to be voted on at a meeting of stockholders, (ii) there are one or more “non-routine” proposals to be voted on at the meeting for which the bank, broker or other nominee does not have authority to vote without instructions from the beneficial owner of the shares and (iii) the beneficial owner fails to provide the bank, broker or other nominee with voting instructions on a “non-routine” matter.
The Extension Amendment Proposal, the Redemption Limitation Amendment Proposal and the Adjournment Proposal are “non-routine” matters and therefore, brokers are not permitted to exercise their voting discretion with respect to these proposals. As a result, if you hold your shares in street name, your bank, brokerage firm or other nominee cannot vote your shares on any of these proposals at the Stockholder Meeting without your instruction.
Vote Required for Approval
The approval of the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal requires the affirmative vote of holders of at least 65%sixty-five percent (65%) of ourthe issued and outstanding shares of common stock on the record date. Each of the Charter Amendment and the Trust Amendment is cross-conditioned on the approval of each other. In other words, if either Proposal is not approved, then we cannot proceed with neither the Charter Amendment nor the Trust Agreement Amendment. With respect to the Trust Amendment Proposal, abstentions and broker non-votes will have the same effect as “AGAINST” votes.
Approval
The Sponsor Holders and Banyan’s officers and directors intend to vote all of their Common Stock in favor of the proposals being presented at the Stockholder Meeting. As of the date of this proxy statement, the Sponsor Holders own 64.4% of the issued and outstanding shares of Common Stock.
The following table reflects the number of additional shares of Public Stock required to approve each proposal:
| Number of Additional Shares of Public Stock Required To Approve Proposal | ||||||||
| Proposal | Approval Standard | If Only Quorum is Present and All Present Shares Cast Votes | If All Shares Are Present and All Present Shares Cast Votes | |||||
| Extension Amendment Proposal | 65% of Issued and Outstanding Shares of Common Stock | N/A | 63,397 | |||||
| Redemption Limitation Amendment Proposal | 65% of Issued and Outstanding Shares of Common Stock | N/A | 63,397 | |||||
| Adjournment Proposal | Majority of Voted Stock | 0 | 0 | |||||
Voting Your Shares
If you were a holder of record of Common Stock as of the close of business on the Record Date for the Stockholder Meeting, you may vote with respect to the proposals electronically, or by completing, signing, dating and returning the enclosed proxy card in the postage-paid envelope provided. Your proxy card shows the number of shares of Common Stock that you own. If your shares are held in “street name” or are in a margin or similar account, you should contact your broker to ensure that votes related to the shares you beneficially own are properly counted.
There are two ways to vote your Common Stock at the Stockholder Meeting:
Voting by Mail. By signing the proxy card and returning it in the enclosed prepaid and addressed envelope, you are authorizing the individuals named on the proxy card to vote your shares at the Stockholder Meeting in the manner you indicate. You are encouraged to sign and return the proxy card even if you plan to attend the Stockholder Meeting so that your shares will be voted if you are unable to attend the Stockholder Meeting. If you receive more than one proxy card, it is an indication that your shares are held in multiple accounts. Please sign and return all proxy cards to ensure that all of your shares are voted. Votes submitted by mail must be received by 5:00 p.m., Eastern Time, on December , 2023.
Voting Electronically. You may attend, vote and examine the list of stockholders entitled to vote at the Stockholder Meeting by visiting www.cstproxy.com/ and entering the control number found on your proxy card, voting instruction form or notice included in the proxy materials.
Revoking Your Proxy
If you give a proxy, you may revoke it at any time before the Stockholder Meeting or at the Stockholder Meeting by doing any one of the following:
| · | you may send another proxy card with a later date; |
| · | you may notify Banyan’s Chief Executive Officer in writing to Banyan Acquisition Corporation, 400 Skokie Blvd., Suite 820, Northbrook, Illinois 60062, before the Stockholder Meeting that you have revoked your proxy; or |
| · | you may attend the virtual Stockholder Meeting, revoke your proxy, and vote electronically, as indicated above. |
No Additional Matters
The Stockholder Meeting has been called only to consider and vote on the approval of the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal and the Adjournment Proposal. Under the amended and restated bylaws of Banyan, other than procedural matters incident to the conduct of the Stockholder Meeting, no other matters may be considered at the Stockholder Meeting if they are not included in this proxy statement, which serves as the notice of the Stockholder Meeting.
Who Can Answer Your Questions about Voting
If you are a Banyan stockholder and have any questions about how to vote or direct a vote in respect of your Common Stock, you may call Morrow Sodali, our proxy solicitor, by calling (800) 662-5200 (toll-free), or banks and brokers can call (203) 658-9400, or by emailing .info@investor.morrowsodali.com.
Redemption Rights
Pursuant to the Certificate of Incorporation, holders of Public Stock may seek to redeem their shares for cash, regardless of whether they vote for or against, or whether they abstain from voting on, the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal. In connection with the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal and contingent upon the effectiveness of the implementation of the Charter Extension and the Redemption Limitation Amendment, any stockholder holding Public Stock may demand that Banyan redeem such shares for a full pro rata portion of the Trust Account (which, for illustrative purposes, was $ per share of Public Stock as of December , 2023), calculated as of two business days prior to the Stockholder Meeting. If a holder properly seeks Redemption as described in this section, Banyan will redeem these shares for a pro rata portion of funds deposited in the Trust Account and the holder will no longer own these shares following the Stockholder Meeting. However, However, Banyan will not proceed with the Charter Extension unless (i) the Redemption Limitation Amendment Proposal is approved or (ii) Banyan will have at least $5,000,001 of net tangible assets following approval of the Extension Amendment Proposal, after taking into account Redemptions.
As a holder of Public Stock, you will be entitled to receive cash for any Public Stock to be redeemed only if you:
| (i) | (a) hold Public Stock or (b) hold Public Stock through Units and elect to separate your Units into the underlying Public Stock and Public Warrants prior to exercising your redemption rights with respect to the Public Stock; |
| (ii) | submit a written request to the Transfer Agent, in which you (a) request that Banyan redeem all or a portion of your Public Stock for cash, and (b) identify yourself as the beneficial holder of the Public Stock and provide your legal name, phone number and address; and |
| (iii) | deliver your Public Stock to the Transfer Agent, physically or electronically through DTC. |
Holders must complete the procedures for electing to redeem their Public Stock in the manner described above prior to 5:00 p.m., Eastern Time, on December , 2023 (two business days prior to the initially scheduled date of the Stockholder Meeting) in order for their shares to be redeemed.
The redemption rights include the requirement that a holder must identify itself in writing as a beneficial holder and provide its legal name, phone number and address to Continental in order to validly redeem its shares.
If you hold your shares in “street name,” you will have to coordinate with your broker to have your shares certificated or delivered electronically. Shares of Banyan that have not been tendered (either physically or electronically) in accordance with these procedures will not be redeemed for cash. There is a nominal cost associated with this tendering process and the act of certificating the shares or delivering them through DTC’s DWAC system. The Transfer Agent will typically charge the tendering broker a fee and it would be up to the broker whether or not to pass this cost on to the redeeming stockholder.
Any request for Redemption, once made by a holder of Public Stock, may not be withdrawn following the Redemption Deadline, unless approved by the Board. Any corrected or changed written exercise of redemption rights must be received by the Transfer Agent, by the Redemption Deadline.
Notwithstanding the foregoing, a public stockholder, together with any affiliate of such public stockholder or any other person with whom such public stockholder is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”)), will be restricted from redeeming its Public Stock with respect to more than an aggregate of 15% of the outstanding shares of Public Stock, without our prior consent. Accordingly, if a validpublic stockholder, alone or acting in concert or as a group, seeks to redeem more than 15% of the outstanding shares of Public Stock, then any such shares in excess of that 15% limit would not be redeemed for cash, without our prior consent.
The closing price of Public Stock on December , 2023, the most recent practicable date prior to the date of this proxy statement, was $ per share. The cash held in the Trust Account on such date was approximately $ (including interest, net of taxes payable) ($ per share of Public Stock). Prior to exercising redemption rights, stockholders should verify the market price of Public Stock as they may receive higher proceeds from the sale of their Public Stock in the public market than from exercising their redemption rights if the market price per share is higher than the redemption price. Banyan cannot assure its stockholders that they will be able to sell their Public Stock in the open market, even if the market price per share is higher than the redemption price stated above, as there may not be sufficient liquidity in its securities when its stockholders wish to sell their shares.
If a holder of Public Stock exercises his, her or its redemption rights, then he, she or it will be exchanging its Public Stock for cash and will no longer own those shares. You will be entitled to receive cash for these shares only if you properly demand Redemption by delivering your share certificate (either physically or electronically) to the Transfer Agent two business days prior to the initially scheduled date of the Stockholder Meeting.
For a discussion of certain material U.S. federal income tax considerations for stockholders with respect to the exercise of these redemption rights, see “Certain Material U.S. Federal Income Tax Considerations for Stockholders Exercising Redemption Rights.” The consequences of a Redemption to any particular stockholder will depend on that stockholder’s particular facts and circumstances. Accordingly, you are urged to consult your tax advisor to determine your tax consequences from the exercise of your redemption rights, including the applicability and effect of U.S. federal, state, local and non-U.S. income and other tax laws in light of your particular circumstances.
Appraisal Rights
There are no appraisal rights available to Banyan’s stockholders in connection with the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal.However, holders of Public Stock may elect to have their shares redeemed in connection with the adoption of the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal, as described under “Redemption Rights” above.
Proxy Solicitation Costs
Banyan is soliciting proxies on behalf of the Board. This proxy solicitation is being made by mail, but also may be made by telephone or in person. Banyan has engaged Morrow Sodali to assist in the solicitation of proxies for the Stockholder Meeting. Banyan and its directors, officers and employees may also solicit proxies in person. Banyan will ask banks, brokers and other institutions, nominees and fiduciaries to forward this proxy statement and the related proxy materials to their principals and to obtain their authority to execute proxies and voting instructions.
Banyan will bear the entire cost of the proxy solicitation, including the preparation, assembly, printing, mailing and distribution of this proxy statement and the related proxy materials. Banyan will pay Morrow Sodali a fee of $ , plus disbursements, reimburse Morrow Sodali for its reasonable out-of-pocket expenses and indemnify Morrow Sodali and its affiliates against certain claims, liabilities, losses, damages and expenses for its services as Banyan’s proxy solicitor. Banyan will reimburse brokerage firms and other custodians for their reasonable out-of-pocket expenses for forwarding this proxy statement and the related proxy materials to Banyan stockholders. Directors, officers and employees of Banyan who solicit proxies will not be paid any additional compensation for soliciting.
PROPOSAL NO. 1 — THE EXTENSION AMENDMENT PROPOSAL
Overview
Banyan is proposing to amend its Certificate of Incorporation to extend the date by which Banyan has to consummate a business combination to the Charter Extension Date so as to give Banyan additional time to complete the Business Combination.
Without the Charter Extension, Banyan believes that Banyan may not be able to complete the Business Combination on or before the Original Termination Date. If that were to occur, Banyan would be forced to liquidate.
As contemplated by the Certificate of Incorporation, the holders of Public Stock may elect to redeem all or a portion of their Public Stock in exchange for their pro rata portion of the funds held in the Trust Account if the Charter Extension is implemented.
On December , 2023, the most recent practicable date prior to the date of this proxy statement, the redemption price per share was approximately $ , based on the aggregate amount on deposit in the Trust Account of approximately $ as of December , 2023 (including interest net of taxes payable), divided by the total number of then issued and outstanding Public Stock. The redemption price per share in connection with the Extension Amendment Proposal will be calculated based on the aggregate amount on deposit in the Trust Account two business days prior to the Stockholder Meeting. The closing price of the Public Stock on the NYSE on , 2023, was $ . Accordingly, if the market price of the Public Stock were to remain the same until the date of the Stockholder Meeting, exercising redemption rights would result in a public stockholder receiving approximately $ [more/less] per share than if the shares were sold in the open market (based on the current per share redemption price as of , 2023). Banyan cannot assure stockholders that they will be able to sell their Public Stock in the open market, even if the market price per share is lower than the redemption price stated above, as there may not be sufficient liquidity in its securities when such stockholders wish to sell their shares. Banyan believes that such redemption right enables its public stockholders to determine whether or not to sustain their investments for an additional period if Banyan does not complete the Business Combination on or before the Original Termination Date.
Reasons for the Extension Amendment Proposal
Banyan’s Certificate of Incorporation provides that Banyan has until December 24, 2023 to complete a business combination. Banyan and its officers and directors agreed that they would not seek to amend Banyan’s Certificate of Incorporation to allow for a longer period of time to complete a business combination unless Banyan provided holders of its Public Stock with the right to seek Redemption of their Public Stock in connection therewith. The Board believes that it is in the best interests of Banyan stockholders that the Charter Extension be obtained so that Banyan will have an additional amount of time to consummate the Business Combination. Without the Charter Extension, Banyan believes that Banyan may not be able to complete the Business Combination on or before December 24, 2023. If that were to occur, Banyan would be forced to liquidate.
The Extension Amendment Proposal is essential to allowing Banyan additional time to consummate the Business Combination. Approval of the Extension Amendment Proposal is a condition to the implementation of the Charter Extension. Banyan will not proceed with the Charter Extension unless (i) the Redemption Limitation Amendment Proposal is approved or (ii) Banyan will have at least $5,000,001 of net tangible assets following approval of the Extension Amendment Proposal, after taking into account the Redemptions. Banyan will also not proceed with the Charter Extension if it completes the Business Combination on or before the Termination Date.
If the Extension Amendment Proposal is approved and the Charter Extension becomes effective, within ten (10) business days of the date of the Stockholder Meeting, the Lender shall make a deposit into the Trust Account (as defined below) of $ per share of Public Stock that is not redeemed in connection with the Stockholder Meeting, in exchange for one or more non-interest bearing, unsecured promissory notes issued by Banyan to the Lender. In addition, if the Extension Amendment Proposal is approved and the Charter Extension becomes effective, in the event that Banyan has not consummated a business combination by January 24, 2024, without approval of Banyan’s public stockholders, Banyan may, by resolution of the Board, if requested by the Sponsor, and upon five days’ advance notice prior to the applicable Termination Date, extend the Termination Date up to twelve times, each by one additional month (for a total of up to twelve additional months to complete a business combination), provided that the Lender will deposit into the Trust Account for each month so extended $ per each share of Public Stock that is not redeemed in connection with the Stockholder Meeting for each such monthly extension, for an aggregate deposit of up to $ per each share of Public Stock that is not redeemed in connection with the Stockholder Meeting (if all twelve additional monthly extensions are exercised), in exchange for a non-interest bearing, unsecured promissory note issued by Banyan to the Lender. If Banyan completes a business combination, it will, at the option of the Lender, repay the amounts loaned under the promissory note or convert a portion or all of the amounts loaned under such promissory note into warrants, which warrants will be identical to the Private Placement Warrants (as defined below). If Banyan does not complete a business combination by the applicable Termination Date, such promissory note will be repaid only from funds held outside of the Trust Account or will be forfeited, eliminated or otherwise forgiven.
If the Extension Amendment Proposal is Not Approved
If the Extension Amendment Proposal is not approved and the Business Combination is not completed on or before the Original Termination Date, then, as contemplated by and in accordance with the Certificate of Incorporation, Banyan will: (i) cease all operations except for the purpose of winding up; (ii) as promptly as reasonably possible but not more than ten business days thereafter subject to lawfully available funds therefor, redeem 100% of the Public Stock, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account (net of taxes payable and less up to $100,000 of such interest to pay dissolution expenses), divided by the total number of the then issued and outstanding shares of Public Stock, which redemption will completely extinguish public stockholders’ rights as stockholders (including the right to receive further liquidation distributions, if any), subject to applicable law; and (iii) as promptly as reasonably possible following such redemption, subject to the approval of Banyan’s remaining stockholders and the Board, in accordance with applicable law, liquidate and dissolve, subject in each case to Banyan’s obligations under the DGCL to provide for claims of creditors and the requirements of other applicable law. There will be no distribution from the Trust Account with respect to Banyan’s warrants, which will expire worthless in the event of our winding up.
The Sponsor Holders has waived their rights to participate in any liquidation distribution with respect to the 7,245,000 shares of Common Stock held by them.
If the Extension Amendment Proposal is Approved
If the Extension Amendment Proposal is approved, Banyan shall procure that all filings required to be made with the Delaware Secretary of State in connection with the Extension Amendment Proposal to extend the time it has to complete a business combination until the Charter Extension Date are made. Banyan will then continue to attempt to consummate the Business Combination until the Charter Extension Date. Banyan will remain a reporting company under the Exchange Act and its Public Stock and Public Warrants will remain publicly traded during this time.
In addition, Banyan will not proceed with the Charter Extension unless (i) the Redemption Limitation Amendment Proposal is approved or (ii) if Banyan will have at least $5,000,001 of net tangible assets following approval of the Extension Amendment Proposal, after taking into account the Redemptions.
Interests of the Sponsor and Banyan’s Directors and Officers
When considering the recommendation of the Board, Banyan stockholders should be aware that aside from their interests as direct or indirect stockholders, the Sponsor and certain members of the Board and officers of Banyan have interests that are different from, or in addition to, those of other stockholders generally. The Board was aware of and considered these interests, among other matters, in recommending to Banyan stockholders that they approve the Extension Amendment Proposal. Banyan stockholders should take these interests into account in deciding whether to approve the Extension Amendment Proposal:
| · | the fact that the Sponsor paid $10,860,000 for 10,860,000 Private Placement Warrants, each of which is exercisable commencing 30 days following the closing of a business combination for one share of Class A Common Stock at $11.50 per share. If the Extension Amendment Proposal is not approved and Banyan does not consummate an initial business combination by December 24, 2023, then the proceeds from the sale of the Private Placement Warrants will be part of the liquidating distribution to the Public Stockholders and the warrants held by the Sponsor will be worthless; |
| · | the fact that the Sponsor Holders (and certain of Banyan’s officers and directors who are members of the Sponsor) have invested in Banyan an aggregate of $10,885,000, comprised of the $25,000 purchase price for 7,245,000 Founder Shares and the $10,860,000 purchase price for 10,860,000 Private Placement Warrants. Subsequent to the initial purchase of the Founder Shares by the Sponsor, the Sponsor transferred an aggregate of 149,625 Founder Shares to Banyan’s independent directors and other third parties. In connection with the Extension Meeting (as defined below) and the Business Combination, the Sponsor entered into agreements, pursuant to which, the Sponsor may transfer up to an aggregate of 3,018,750 Founder Shares at the closing of the Business Combination, which if transferred, would leave the Sponsor Holders with an aggregate of 4,226,250 Founder Shares, 2,396,250 of which will be vested upon closing of the Business Combination. Assuming a trading price of $ per share of Class A Common Stock (based upon the closing price of the Class A Common Stock on the NYSE on , 2023), the 2,396,250 vested Founder Shares held by the Sponsor Holders upon closing of the Business Combination would have an implied aggregate market value of $ , representing unrealized gain for such holders of $ . Even if the trading price of the shares of Class A Common Stock following the Business Combination were as low as $4.55 per share, the aggregate market value of the 2,396,250 vested Founder Shares alone (without taking into account the value of the Private Placement Warrants) would be approximately equal to the initial investment in Banyan by the Sponsor Holders. As a result, if the Extension Amendment Proposal is approved and the Business Combination is completed, the Sponsor Holders are likely to be able to make a substantial profit on their investment in Banyan at a time when shares of the post-Business Combination company have lost significant value. On the other hand, if Banyan liquidates without completing a business combination before December 24, 2023, the Sponsor Holders will lose their entire investment in Banyan; |
| · | the fact that the Sponsor Holders and Banyan’s officers and directors have agreed to waive their rights to liquidating distributions from the Trust Account with respect to any shares of Common Stock (other than Public Stock) held by them if the Extension Amendment Proposal is not approved and Banyan fails to complete a Business Combination by December 24, 2023; |
| · | the indemnification of Banyan’s officers and directors and the liability insurance maintained by Banyan; |
| · | the fact that the Sponsor and Banyan’s officers and directors will lose their entire investment in Banyan and will not be reimbursed for any loans extended, fees due or out-of-pocket expenses if the Extension Amendment Proposal is not approved and a Business Combination is not consummated by December 24, 2023. As of the date of this proxy statement, there are loans extended, fees due or outstanding out-of-pocket expenses amounting in the aggregate of $516,000 for which the Sponsor and Banyan’s officers are awaiting reimbursement; and |
| · | the fact that, if the Trust Account is liquidated, including in the event Banyan is unable to complete an initial business combination within the required time period, the Sponsor has agreed to indemnify Banyan to ensure that the proceeds in the Trust Account are not reduced below $10.20 per Public Share, or such lesser per Public Share amount as is in the Trust Account on the liquidation date, by the claims of prospective target businesses with which Banyan has entered into an acquisition agreement or claims of any third party for services rendered or products sold to Banyan, but only if such a vendor or target business has not executed a waiver of any and all rights to seek access to the Trust Account. |
Redemption Rights
Pursuant to the Certificate of Incorporation, holders of Common Stock may seek to redeem their shares for cash, regardless of whether they vote for or against, or whether they abstain from voting on, the Extension Amendment Proposal. In connection with the Extension Amendment Proposal and contingent upon the effectiveness of the implementation of the Charter Extension, any stockholder holding shares of Public Stock may demand that Banyan redeem such shares for a full pro rata portion of the Trust Account (which, for illustrative purposes, was $ per share as of December , 2023), calculated as of two business days prior to the Stockholder Meeting. If a holder properly seeks Redemption as described in this section, Banyan will redeem these shares for a pro rata portion of funds deposited in the Trust Account and the holder will no longer own these shares following the Stockholder Meeting. However, Banyan will not proceed with the Charter Extension unless (i) the Redemption Limitation Amendment Proposal is approved or (ii) if Banyan will have at least $5,000,001 of net tangible assets following approval of the Extension Amendment Proposal, after taking into account the Redemptions. As a holder of Public Stock, you will be entitled to receive cash for any Public Stock to be redeemed only if you:
| (i) | (a) hold Public Stock or (b) hold Public Stock through Units and elect to separate your Units into the underlying Public Stock and Public Warrants prior to exercising your redemption rights with respect to the Public Stock; |
| (ii) | submit a written request to the Transfer Agent, in which you (a) request that Banyan redeem all or a portion of your Public Stock for cash, and (b) identify yourself as the beneficial holder of the Public Stock and provide your legal name, phone number and address; and |
| (iii) | deliver your Public Stock to the Transfer Agent, physically or electronically through DTC. |
Holders must complete the procedures for electing to redeem their Public Stock in the manner described above prior to 5:00 p.m., Eastern Time, on December , 2023 (two business days prior to the initially scheduled date of the Stockholder Meeting) in order for their shares to be redeemed.
The redemption rights include the requirement that a holder must identify itself in writing as a beneficial holder and provide its legal name, phone number and address to Continental in order to validly redeem its shares.
If you hold the shares in “street name,” you will have to coordinate with your broker to have your shares certificated or delivered electronically. Shares of Banyan that have not been tendered (either physically or electronically) in accordance with these procedures will not be redeemed for cash. There is a nominal cost associated with this tendering process and the act of certificating the shares or delivering them through DTC’s DWAC system. The Transfer Agent will typically charge the tendering broker a fee and it would be up to the broker whether or not to pass this cost on to the redeeming stockholder.
Any request for Redemption, once made by a holder of Public Stock, may not be withdrawn following the Redemption Deadline, unless approved by the Board. Any corrected or changed written exercise of redemption rights must be received by the Transfer Agent by the Redemption Deadline.
Notwithstanding the foregoing, a public stockholder, together with any affiliate of such public stockholder or any other person with whom such public stockholder is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Exchange Act), will be restricted from redeeming its Public Stock with respect to more than an aggregate of 15% of the outstanding shares of Public Stock, without our prior consent. Accordingly, if a public stockholder, alone or acting in concert or as a group, seeks to redeem more than 15% of the outstanding shares of Public Stock, then any such shares in excess of that 15% limit would not be redeemed for cash, without our prior consent.
The closing price of Public Stock on , 2023, the most recent practicable date prior to the date of this proxy statement, was $ per share. The cash held in the Trust Account on such date was approximately $ (including interest not previously released to Banyan to pay its taxes) ($ per share of Public Stock). Prior to exercising redemption rights, stockholders should verify the market price of Public Stock as they may receive higher proceeds from the sale of their Public Stock in the public market than from exercising their redemption rights if the market price per share is higher than the redemption price. Banyan cannot assure its stockholders that they will be able to sell their Public Stock in the open market, even if the market price per share is higher than the redemption price stated above, as there may not be sufficient liquidity in its securities when its stockholders wish to sell their shares.
If a holder of Public Stock exercises his, her or its redemption rights, then he, she or it will be exchanging its Public Stock for cash and will no longer own those shares. You will be entitled to receive cash for these shares only if you properly demand Redemption by delivering your share certificate (either physically or electronically) to the Transfer Agent two business days prior to the initially scheduled date of the Stockholder Meeting.
Vote Required for Approval
The approval of the Extension Amendment Proposal requires the affirmative vote of at least sixty-five percent (65%) of the issued and outstanding shares of Common Stock. Abstentions will be considered present for the purposes of establishing a quorum but will not constitute votes cast at the Stockholder Meeting and therefore will have the same effect as a vote “AGAINST” the Extension Amendment Proposal.
As of the date of this proxy statement, the Sponsor Holders and Banyan’s officers and directors intend to vote all Common Stock owned by them in favor of the Extension Amendment Proposal. As of the date hereof, the Sponsor Holders own 64.4% of the issued and outstanding shares of Common Stock. As a result, in addition to the Sponsor Holders, approval of the Extension Amendment Proposal will require the affirmative vote of at least 63,397 shares of Public Stock (or approximately 1.6% of the Public Stock).
Recommendation of the Board
BOARD UNANIMOUSLY RECOMMENDS THAT BANYAN STOCKHOLDERS VOTE “FOR”
THE EXTENSION AMENDMENT PROPOSAL.
PROPOSAL NO. 2 — THE REDEMPTION LIMITATION AMENDMENT PROPOSAL
Overview
Banyan is proposing to amend its Certificate of Incorporation to eliminate the requirement that Banyan has at least $5,000,001 in tangible net assets (as determined in accordance with Rule 3a51-1(g)(1) under the Exchange Act) following redemptions in connection with this Stockholder Meeting or a business combination.
Without the Redemption Limitation Amendment, Banyan may not be able to implement the Charter Extension if following redemptions in connection with the Charter Extension Banyan would not have at least $5,000,001 in tangible net assets (as determined in accordance with Rule 3a51-1(g)(1) under the Exchange Act). If that were to occur, African would be forced to liquidate on the Termination Date.
The purpose of the Redemption Limitation requirements was to ensure that Banyan would not be subject to the “penny stock” rules of the SEC as long as it met the Redemption Limitation requirement, and therefore not be deemed a “blank check company” as defined under Rule 419 of the Securities Act because it complied with Rule 3a51-1(g)(1) (the “NTA Rule”). Banyan is proposing to amend its Certificate of Incorporation to remove the Redemption Limitation requirements. The NTA Rule is one of several exclusions from the “penny stock” rules of the SEC and Banyan believes that it can rely on another exclusion, which relates to it being listed on the NYSE (Rule 3a51-1(a)(2)) (the “Exchange Rule”). Therefore, Banyan intends to rely on the exclusion from the penny stock rules set forth in Rule 3a51-1(a)(2) as a result of its securities being listed on the NYSE.
As disclosed in our initial public offering prospectus, Banyan is a blank check company formed for the purpose of effecting a merger, stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses. Under Rule 419 of the Securities Act the term “blank check company” means a company that (i) is a development stage company that has no specific business plan or purpose or has indicated that its business plan is to engage in a merger or acquisition with an unidentified company or companies, or other entity or person; and (ii) is issuing “penny stock,” as defined in Rule 3a51-1 under the Exchange Act. Rule 3a51-1 sets forth that the term “penny stock” shall mean any equity security, unless it fits within certain enumerated exclusions including the NTA Rule and the Exchange Rule. Historically SPACs have relied upon the NTA Rule to avoid being deemed a penny stock issuer. The inclusion of the Redemption Limitation requirements in the Certificate of Incorporation was to ensure that through the consummation of an initial business combination, Banyan would not be considered a penny stock issuer and therefore a blank check company if no other exemption from the rule was available.
The Exchange Rule excludes from the definition of “penny stock” a security that is registered, or approved for registration upon notice of issuance, on a national securities exchange, or is listed, or approved for listing upon notice of issuance on, an automated quotation system sponsored by a registered national securities association, that has established initial listing standards that meet or exceed the criteria in the rule. Banyan’s securities are listed on NYSE and have been since the consummation of its Initial Public Offering. Banyan believes that NYSE has initial listing standards that meet the criteria identified in the Exchange Rule and that it can therefore rely on this rule to avoid being treated as a penny stock. Therefore, the inclusion of the Redemption Limitation in the Certificate of Incorporation is unnecessary.
Reasons for the Redemption Limitation Amendment Proposal
Stockholders are being asked to adopt the proposed Redemption Limitation Amendment Proposal which, in the judgment of the Board, may facilitate the consummation of the Business Combination. The Certificate of Incorporation limits Banyan’s ability to consummate an initial business combination, or to redeem Ordinary Stock in connection with an initial business combination, if it would cause Banyan to have less than $5,000,001 in net tangible assets. The purpose of such limitation was initially to ensure that the Ordinary Stock were not deemed to be a “penny stock” pursuant to Rule 3a51-1 under the Exchange Act in the event that such Ordinary Stock failed to be listed on an approved national securities exchange. If the Redemption Limitation Amendment Proposal is not approved and there are significant requests for redemption in connection with the Charter Extension such that following such redemptions, Banyan’s net tangible assets would be less than $5,000,001, the Redemption Limitation in the Certificate of Incorporation would prevent Banyan from being able to implement the Charter Extension. If that were to occur, Banyan would be forced to liquidate on the Termination Date.
Additionally, if the Redemption Limitation Amendment Proposal is not approved and there are significant requests for redemption in connection with consummation of the Business Combination, the Redemption Limitation in the Certificate of Incorporation would prevent Banyan from being able to consummate the Business Combination even if all other conditions to closing are met.
If the Redemption Limitation Amendment Proposal is Not Approved
If the Redemption Limitation Amendment Proposal is not approved, we will not redeem Public Stock to the extent that accepting all properly submitted redemption requests would exceed the Redemption Limitation. In the event that the Redemption Limitation Amendment Proposal is not approved and we receive notice of redemptions of Public Stock approaching or in excess of the Redemption Limitation, we and/or the Sponsor may take action to increase our net tangible assets to avoid exceeding the Redemption Limitation, which may include, at our and our Sponsor’s option and in our and its sole discretion, any, several or all of the following actions: (a) attempting to secure waivers of certain of our significant liabilities, including the deferred underwriting fees, and (b) entering into non-redemption agreements with certain of our significant stockholders. If the Redemption Limitation Amendment Proposal is not approved and the Redemption Limitation is exceeded, either because we do not take action to increase our net tangible assets or because our attempt to do so is not successful, then we will not proceed with the Charter Extension and we will not redeem any Public Stock. In such case, Public Stock which a public stockholder elects to redeem but which are not redeemed shall be returned to such public stockholder or such public stockholder’s account and such public stockholder will retain the right to have their Public Stock redeemed for cash if Banyan has not completed an initial business combination by the Termination Date.
If the Redemption Limitation Amendment Proposal is Approved
If the Redemption Limitation Amendment Proposal is approved (and the Extension Amendment Proposal is also approved), Banyan shall procure that all filings required to be made with the Delaware Secretary of State in connection with the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal are made and, assuming the Extension Amendment Proposal is approved, redeem Public Stock as necessary, irrespective of whether such redemptions exceed the Redemption Limitation.
Interests of the Sponsor, Banyan’s Directors, and Officers
When you consider the recommendation of the Board, Banyan stockholders should be aware that aside from their interests as stockholders, the Sponsor, certain members of the Board, and officers of Banyan have interests that are different from, or in addition to, those of other stockholders generally. The Board was aware of and considered these interests, among other matters, in recommending to Banyan stockholders that they approve the Redemption Limitation Amendment Proposal. Banyan stockholders should take these interests into account in deciding whether to approve the Redemption Limitation Amendment Proposal.
Please see “Proposal No. 1—TheExtension Amendment Proposal—Interests of the Sponsor and Banyan’s Directors and Offices” above when you consider the recommendation of the Board. Banyan stockholders should take these interests into account in deciding whether to approve the Redemption Limitation Amendment Proposal.
Redemption Rights
Pursuant to the Certificate of Incorporation, holders of Common Stock may seek to redeem their shares for cash, regardless of whether they vote for or against, or whether they abstain from voting on, the Redemption Limitation Amendment Proposal. In connection with the Redemption Limitation Amendment Proposal and contingent upon the effectiveness of the implementation of the Redemption Limitation Amendment, any stockholder holding shares of Public Stock may demand that Banyan redeem such shares for a full pro rata portion of the Trust Account (which, for illustrative purposes, was $ per share as of , 2023), calculated as of two business days prior to the Stockholder Meeting. If a holder properly seeks Redemption as described in this section, Banyan will redeem these shares for a pro rata portion of funds deposited in the Trust Account and the holder will no longer own these shares following the Stockholder Meeting.
As a holder of Public Stock, you will be entitled to receive cash for any Public Stock to be redeemed only if you:
| (i) | (a) hold Public Stock or (b) hold Public Stock through Units and elect to separate your Units into the underlying Public Stock and Public Warrants prior to exercising your redemption rights with respect to the Public Stock; |
| (ii) | submit a written request to the Transfer Agent, in which you (a) request that Banyan redeem all or a portion of your Public Stock for cash, and (b) identify yourself as the beneficial holder of the Public Stock and provide your legal name, phone number and address; and |
| (iii) | deliver your Public Stock to the Transfer Agent, physically or electronically through DTC. |
Holders must complete the procedures for electing to redeem their Public Stock in the manner described above prior to 5:00 p.m., Eastern Time, on December , 2023 (two business days prior to the initially scheduled date of the Stockholder Meeting) in order for their shares to be redeemed.
The redemption rights include the requirement that a holder must identify itself in writing as a beneficial holder and provide its legal name, phone number and address to Continental in order to validly redeem its shares.
If you hold the shares in “street name,” you will have to coordinate with your broker to have your shares certificated or delivered electronically. Stock of Banyan that has not been tendered (either physically or electronically) in accordance with these procedures will not be redeemed for cash. There is a nominal cost associated with this tendering process and the act of certificating the shares or delivering them through DTC’s DWAC system. The Transfer Agent will typically charge the tendering broker a fee and it would be up to the broker whether or not to pass this cost on to the redeeming stockholder.
Any request for Redemption, once made by a holder of Public Stock, may not be withdrawn following the Redemption Deadline, unless approved by the Board. Any corrected or changed written exercise of redemption rights must be received by the Transfer Agent by the Redemption Deadline.
Notwithstanding the foregoing, a public stockholder, together with any affiliate of such public stockholder or any other person with whom such public stockholder is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Exchange Act), will be restricted from redeeming its Public Stock with respect to more than an aggregate of 15% of the outstanding shares of Public Stock, without our prior consent. Accordingly, if a public stockholder, alone or acting in concert or as a group, seeks to redeem more than 15% of the outstanding shares of Public Stock, then any such shares in excess of that 15% limit would not be redeemed for cash, without our prior consent.
The closing price of Public Stock on December , 2023, the most recent practicable date prior to the date of this proxy statement, was $ per share. The cash held in the Trust Account on such date was approximately $ (including interest, net of taxes payable) ($ per share of Public Stock). Prior to exercising redemption rights, stockholders should verify the market price of Public Stock as they may receive higher proceeds from the sale of their Public Stock in the public market than from exercising their redemption rights if the market price per share is higher than the redemption price. Banyan cannot assure its stockholders that they will be able to sell their Public Stock in the open market, even if the market price per share is higher than the redemption price stated above, as there may not be sufficient liquidity in its securities when its stockholders wish to sell their shares.
If a holder of Public Stock exercises his, her or its redemption rights, then he, she or it will be exchanging its Public Stock for cash and will no longer own those shares. You will be entitled to receive cash for these shares only if you properly demand Redemption by delivering your share certificate (either physically or electronically) to the Transfer Agent two business days prior to the initially scheduled date of the Stockholder Meeting.
Vote Required for Approval
The approval of the Redemption Limitation Amendment Proposal requires the affirmative vote of at least sixty-five percent (65%) of the issued and outstanding shares of Common Stock. Abstentions will be considered present for the purposes of establishing a quorum but will not constitute votes cast at the Stockholder Meeting and therefore will have the same effect as a vote “AGAINST” the Redemption Limitation Amendment Proposal.
As of the date of this proxy statement, the Sponsor and Banyan’s officers and directors intend to vote all Common Stock owned by them in favor of the Redemption Limitation Amendment Proposal. As of the date hereof, the Sponsor Holders own 64.4% of the issued and outstanding shares of Common Stock. As a result, in addition to the Sponsor Holders, approval of the Redemption Limitation Amendment Proposal will require the affirmative vote of at least 63,397 shares of Public Stock (or approximately 1.6% of the Public Stock).
Recommendation of the Board
BOARD UNANIMOUSLY RECOMMENDS THAT BANYAN STOCKHOLDERS VOTE “FOR”
THE REDEMPTION LIMITATION AMENDMENT PROPOSAL.
PROPOSAL NO. 3 — THE ADJOURNMENT PROPOSAL
Overview
Banyan is asking stockholders to approve the adjournment of the Stockholder Meeting to a later date or dates if necessary (i) to permit further solicitation and vote of proxies if, based upon the tabulated vote at the time of the Stockholder Meeting, there are insufficient shares of Common Stock represented (either in person or by proxy) to approve the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal and (ii) where the Board has determined it is otherwise established,necessary.
Consequences if the Adjournment Proposal is Not Approved
If the Adjournment Proposal is not approved by Banyan’s stockholders, the Board may not be able to adjourn the Stockholder Meeting to a stockholder’s failurelater date in the event, that based on the tabulated votes, there are insufficient shares of Common Stock represented (either in person or by proxy) at the time of the Stockholder Meeting to approve the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal. In such events, the Charter Extension and the Redemption Limitation Amendment would not be implemented.
Vote Required for Approval
The approval of the Adjournment Proposal requires the affirmative vote of at least a majority of the votes cast by stockholders represented virtually or by proxy and entitled to vote by proxy or onlinethereon at the special meetingStockholder Meeting. Abstentions will be considered present for the purposes of establishing a quorum but will not constitute votes cast at the Stockholder Meeting and therefore will have no effect on the outcome of any vote on the Adjournment Proposal. Abstentions will be counted in connection with the determination of whether a valid quorum is established but will have no effect on the outcomeapproval of the Adjournment Proposal.
As of the date of this proxy statement, the Sponsor and Banyan’s officers and directors intend to vote any Common Stock owned by them in favor of the Adjournment Proposal. As of the date hereof, the Sponsor Holders own 64.4% of the issued and outstanding shares of Common Stock. As a result, in addition to the Sponsor Holders, approval of the Adjournment Proposal will require the affirmative vote of no shares of Common Stock held by public stockholders if all Public Stock are represented at the Stockholder Meeting and cast votes, and the affirmative vote of no shares of Public Stock if only such shares as are required to establish a quorum are represented at the Stockholder Meeting and cast votes.
Recommendation of the Board
THE BOARD UNANIMOUSLY RECOMMENDS THAT BANYAN STOCKHOLDERS VOTE “FOR”
THE APPROVAL OF THE ADJOURNMENT PROPOSAL.
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The following discussion is a summary of certain United Statesmaterial U.S. federal income tax considerations for holdersU.S. Holders and Non-U.S. Holders (each as defined below) of our common stock with respectPublic Stock that elect to have their shares of Public Stock redeemed for cash if the Extension Amendment Proposal or the Redemption Election.Limitation Amendment Proposal is approved. This summarysection applies only to investors that hold Public Stock as capital assets for U.S. federal income tax purposes (generally, property held for investment). This discussion does not address all aspects of U.S. federal income taxation that may be relevant to a particular stockholder in light of its particular circumstances or status, including:
| · | banks, financial institutions or financial services entities; |
| · | broker-dealers; |
| · | S corporations; |
| · | taxpayers that are subject to the mark-to-market accounting rules; |
| · | tax-exempt entities; |
| · | governments or agencies or instrumentalities thereof; |
| · | tax-qualified retirement plans; |
| · | insurance companies; |
| · | regulated investment companies or real estate investment trusts; |
| · | expatriates or former long-term residents or citizens of the United States; |
| · | persons that directly, indirectly, or constructively own five percent or more of our voting shares or five percent or more of the total value of all classes of our shares; |
| · | except as discussed below, persons that acquired our securities pursuant to an exercise of employee share options, in connection with employee share incentive plans or otherwise as compensation; |
| · | persons that hold our securities as part of a straddle, constructive sale, hedging, conversion, synthetic security or other integrated or similar transaction; |
| · | persons subject to the alternative minimum tax; |
| · | persons whose functional currency is not the U.S. dollar; |
| · | “specified foreign corporation” (including “controlled foreign corporations”), “passive foreign investment companies” and corporations that accumulate earning to avoid U.S. federal income tax; |
| · | corporations that accumulate earnings to avoid U.S. federal income tax; |
| · | “qualified foreign pension funds” (within the meaning of Section 897(l)(2) of the Code) and entities whose interests are held by qualified foreign pension funds; |
| · | accrual method taxpayers that file applicable financial statements as described in Section 451(b) of the Code; |
| · | foreign corporations with respect to which there are one or more United States stockholders within the meaning of Treasury Regulation Section 1.367(b)-3(b)(1)(ii); or |
| · | Redeeming Non-U.S. Holders (as defined below, and except as otherwise discussed below). |
This discussion is based uponon current U.S. federal income tax laws as in effect on the Internal Revenue Code of 1986, as amended,date hereof, which we referis subject to as the “Code,” the regulations promulgated bychange, possibly on a retroactive basis, which may affect the U.S. Treasury Department, current administrative interpretationsfederal income tax consequences described herein. Furthermore, this discussion does not address any aspect of U.S. federal non-income tax laws, such as gift, estate or Medicare net investment income tax laws, or state, local or non-U.S. laws. Banyan has not sought, and practices ofBanyan does not intend to seek, a ruling from the U.S. Internal Revenue Service which(“IRS”) as to any U.S. federal income tax considerations described herein. The IRS may disagree with the discussion herein, and its determination may be upheld by a court. Moreover, there can be no assurance that future legislation, regulations, administrative rulings or court decisions will not adversely affect the accuracy of the statements in this discussion.
This discussion does not consider the U.S. federal income tax treatment of entities or arrangements treated as partnerships or other pass-through entities (including branches) for U.S. federal income tax purposes (any such entity or arrangement, a “Flow-Through Entity”) or investors that hold our securities through Flow-Through Entities. If a Flow-Through Entity is the beneficial owner of our securities, the U.S. federal income tax treatment of an investor holding our securities through a Flow-Through Entity generally will depend on the status of such investor and the activities of such investor and such Flow-Through Entity.
If you hold our securities through a Flow-Through Entity, we referurge you to consult your tax advisor.
THE FOLLOWING IS FOR INFORMATIONAL PURPOSES ONLY. EACH HOLDER IS URGED TO CONSULT ITS TAX ADVISOR WITH RESPECT TO THE PARTICULAR TAX CONSEQUENCES TO SUCH HOLDER OF EXERCISING REDEMPTION RIGHTS, INCLUDING THE EFFECTS OF U.S. FEDERAL, STATE AND LOCAL AND NON-U.S. TAX LAWS.
For purposes of this discussion, because any Unit consisting of one share of Class A Common Stock and one-half of one redeemable warrant (with a whole warrant representing the right to acquire one share of Class A Common Stock) is separable at the option of the holder, Banyan is treating each share of Class A Common Stock and one-half of one redeemable warrant to acquire one share of Class A Common Stock held by a holder in the form of a single unit as separate instruments and is assuming that the “
Certain U.S. Federal Income Tax Considerations to U.S. Holders
This section is addressed to Redeeming U.S. Holders (as defined below) of our common stockPublic Stock that make aelect to have their Public Stock redeemed for cash as described in the section entitled “Proposal No. 1 — The Extension Amendment Proposal — Redemption Election.Rights and “Proposal No. 2 — The Redemption Limitation Amendment Proposal — Redemption Rights.” For purposes of this discussion, a “Redeeming U.S. Holder” is a beneficial owner that is:
| · | an individual who is a citizen or resident of the United States; |
| · | a corporation (or other entity that is treated as a corporation for U.S. federal income tax purposes) that is created or organized (or treated as created or organized) in or under the laws of the United States or any state thereof or the District of Columbia; |
| · | an estate the income of which is subject to U.S. federal income taxation regardless of its source; or |
| · | an entity treated as a trust if (1) a U.S. court is able to exercise primary supervision over the administration of such trust and one or more United States persons (within the meaning of the Code) have the authority to control all substantial decisions of the trust or (2) it has a valid election in place to be treated as a United States person. |
Tax Treatment of the Redemption — In General
The U.S. federal income tax consequences to a Redeeming U.S. Holder of Public Stock that exercises its redemption rights to receive cash in exchange for all or a portion of its Public Stock will depend on whether the redemption qualifies as a sale
Whether a redemption of Public Stock qualifies for sale treatment will depend largely on the total number of shares of our stock held or treated as held by the U.S. Holderredeemed holder before and after the redemption (including any stock constructively owned by the holder as a result of owning warrants) relative to all of our shares outstanding both before and after the redemption. The redemption of common stock generally will be treatedqualify as a sale of the common stock (rather than as a distribution)such shares if the redemption either (i) is “substantially disproportionate” with respect to the Redeeming U.S. Holder, (ii) results in a “complete termination”redemption” of thesuch Redeeming U.S. Holder’s interest in us,Banyan or (iii) is “not essentially equivalent to a dividend” with respect to thesuch Redeeming U.S. Holder. These tests are explained more fully below.
For purposes of the foregoingsuch tests, are satisfied, a Redeeming U.S. Holder takes into account not only stock actuallyshares directly owned by thesuch Redeeming U.S. Holder, but also shares of our stock that are constructively owned by it.such Redeeming U.S. Holder. A Redeeming U.S. Holder may constructively own, in addition to stockPublic Stock owned directly, stockPublic Stock owned by certain related individuals and entities in which thesuch Redeeming U.S. Holder has an interest or that have an interest in such Redeeming U.S. Holder, as well as any stock theshares such Redeeming U.S. Holder has a right to acquire by exercise of an option, which would generally include common stockshares which could be acquired pursuant to the exercise of the right. In orderPublic Warrants.
The redemption generally will be “substantially disproportionate” with respect to meet the substantially disproportionate test,a Redeeming U.S. Holder if the percentage of ourBanyan’s outstanding voting stock actually and constructively owned by theshares that such Redeeming U.S. Holder directly or constructively owns immediately followingafter the redemption of common stock must, among other requirements, beis less than 80% of ourthe percentage of Banyan’s outstanding voting stockshares that such Redeeming U.S. Holder directly or constructively owned immediately before the redemption, and such Redeeming U.S. Holder immediately after the redemption actually and constructively owned byowns less than 50% of the U.S. Holder immediately before the redemption.total combined voting power of Banyan. There will be a complete terminationredemption of asuch Redeeming U.S. Holder’s interest if either (i) all of the shares of our stock actually anddirectly or constructively owned by thesuch Redeeming U.S. Holder are redeemed or (ii) all of the shares of our stock actuallydirectly owned by thesuch Redeeming U.S. Holder are redeemed and thesuch Redeeming U.S. Holder is eligible to waive, and effectively waives in accordance with specific rules, the attribution of stockthe shares owned by certain family members and thesuch Redeeming U.S. Holder does not constructively own any other stock.shares. The redemption of the common stock will not be essentially equivalent to a dividend if a U.S. Holder’s conversionit results in a “meaningful reduction” of thesuch Redeeming U.S. Holder’s proportionate interest in us.Banyan. Whether the redemption will result in a meaningful reduction“meaningful reduction” in asuch Redeeming U.S. Holder’s proportionate interest in us will depend on the particular facts and circumstances. However, thecircumstances applicable to it. The IRS has indicated in a published ruling that even a small reduction in the proportionate interest of a small minority stockholderStockholder in a publicly held corporation whothat exercises no control over corporate affairs may constitute such a “meaningful reduction.”
If none of the foregoingabove tests areis satisfied, then the redemption will be treated as a distribution and the tax effects will be as described below under “U.S. Federal Income Tax Considerations to U.S. Holders — Taxation of Distributions.”
Redemption of Public Stock Treated as Corporate Distribution
If the redemption is treated as a corporate distribution, such distribution generally will constitute dividendsa dividend for United StatesU.S. federal income tax purposes to the extent paid from our current or accumulated earnings and
Distributions in excess of current and accumulated earnings and profits will constitute a return of capital that will be applied against and reduce (but not below zero) the Redeeming U.S. Holder’s adjusted tax basis in our common stock.such Redeeming U.S. Holder’s Public Stock. Any remaining excess will be treated as gain realized on the sale or other disposition of such Redeeming U.S. Holder’s Public Stock as discussed below. After the common stock andapplication of those rules, any remaining tax basis of the Redeeming U.S. Holder in the redeemed Public Stock will be treated as described under “U.S. Federal Income Tax Considerationsadded to the Redeeming U.S. Holders — GainHolder’s adjusted tax basis in its remaining Public Stock, or, Loss on a if it has none, to the Redeeming U.S. Holder’s adjusted tax basis in its Public Warrants or possibly in other shares constructively owned by it.
Redemption of CommonPublic Stock Treated as a Sale.” Dividends we paySale or Other Disposition
If the redemption qualifies as a sale or other disposition of Public Stock, a Redeeming U.S. Holder will generally recognize gain or loss in an amount equal to the difference between (i) the amount of cash received in such redemption (or, if the Public Stock is held as part of a unit at the time of the disposition, the portion of the amount realized on such disposition that is allocated to the Public Stock based upon the then fair market values of the Public Stock and the one-half of one redeemable warrant included in the unit) and (ii) the Redeeming U.S. Holder’s adjusted tax basis in its Public Stock so redeemed. A Redeeming U.S. Holder’s adjusted tax basis in its Public Stock generally will equal the Redeeming U.S. Holder’s acquisition cost (that is, the portion of the purchase price of a unit allocated to a share of Public Stock or the Redeeming U.S. Holder that isHolder’s initial basis for Public Stock received upon exercise of a taxable corporation generallywhole warrant) less any prior distributions treated as a return of capital. Any such capital gain or loss will qualifybe long-term capital gain or loss if the Redeeming U.S. Holder’s holding period for the dividends received deduction if the requisite holding period is satisfied. With certain exceptions, and provided certain holding period requirements are met, dividends we pay toPublic Stock so disposed of exceeds one year. Long-term capital gain realized by a non-corporate Redeeming U.S. Holder generally will constitute “qualified dividends” that will be taxable at a reduced rate. IfThe deduction of capital losses is subject to limitations. However, it is unclear whether the redemption rights with respect to the Public Stock described in this proxy statement may prevent a U.S. Holder from satisfying the applicable holding period requirements are not satisfied, thenfor long-term capital gain or loss.
If a corporation may not be ableRedeeming U.S. Holder holds different blocks of Public Stock (generally, shares of Public Stock purchased or acquired on different dates or at different prices), such Redeeming U.S. Holder is urged to qualify forconsult its tax advisors to determine how the dividends received deduction and would have taxable income equalabove rules apply to the entire dividend amount, and non-corporate holders may be subject to tax on such dividend at regular ordinary income tax rates instead of the preferential rate that applies to qualified dividends.
ALL REDEEMING U.S. HOLDERS ARE URGED TO CONSULT THEIR TAX ADVISORS AS TO THE TAX CONSEQUENCES TO THEM OF A REDEMPTION OF ALL OR A PORTION OF THEIR PUBLIC STOCK PURSUANT TO AN EXERCISE OF REDEMPTION RIGHTS.
Certain U.S. Federal Income Tax Considerations to Non-U.S. HoldersStockholders
This section is addressed to Redeeming Non-U.S. Holders (as defined below) of our common stockPublic Stock that make aelect to have their shares redeemed for cash as described in the section entitled “Proposal No. 1 — The Extension Amendment Proposal — Redemption Election.Rights and “Proposal No. 2 — The Redemption Limitation Amendment Proposal — Redemption Rights.” For purposes of this discussion, a “Redeeming Non-U.S. Holder” is a beneficial owner (other than a partnership)Flow-Through Entity) of our Public Stock that so redeems its Public Stock and is not a Redeeming U.S. Holder.
Tax Treatment of the Redemption — In General
Except as otherwise discussed in this section, the characterization of Common Stock
Redeeming Non-U.S. Holders of our common stockshares considering exercising their redemption rights shouldare urged to consult their own tax advisors as to whether the redemption of their common stock of the Companyshares will be treated as a sale or as a distribution under the Code.
Redemption of CommonPublic Stock Treated as a SaleCorporate Distribution
If the redemption qualifies as a sale of common stock, a Non-U.S. Holdercorporate distribution, such distribution generally will not be subject to United States federal income or withholding tax in respect of gain recognized onconstitute a sale of its common stock of the Company, unless:
The withholding tax does not apply to dividends paid to a Redeeming Non-U.S. Holder who provides a Form W-8ECI, certifying that the dividends are effectively connected with suchthe Redeeming Non-U.S. Holder’s conduct of a trade or business within the United StatesStates. Instead, the effectively connected dividends will be subject to regular U.S. income tax as if the Redeeming Non-U.S. Holder were a U.S. resident, subject to an applicable income tax treaty providing otherwise. A Redeeming Non-U.S. corporation receiving effectively connected dividends may also be subject to an additional “branch profits tax” imposed at a rate of 30% (or a lower treaty rate).
Redemption of Public Stock Treated as a Sale or Other Disposition
If the redemption qualifies as a sale or other disposition, a Redeeming Non-U.S. Holder generally will not be subject to United StatesU.S. federal income or withholding tax provided such Non-U.S. Holder complies with certain certification and disclosure requirements. Instead, such dividends generallyin respect of gain recognized on a sale or other disposition of Public Stock unless:
| · | the gain is effectively connected with the conduct of a trade or business by the Redeeming Non-U.S. Holder within the United States (and, under certain income tax treaties, is attributable to a United States permanent establishment or fixed base maintained by the Redeeming Non-U.S. Holder); |
| · | the Redeeming Non-U.S. Holder is an individual present in the United States for 183 days or more in the taxable year of disposition and certain other conditions are met; or |
| · | we are or have been a “U.S. real property holding corporation” for U.S. federal income tax purposes at any time during the shorter of the five-year period ending on the date of disposition or the period that the Redeeming Non-U.S. Holder held Public Stock, and, in the case where the shares of Public Stock are regularly traded on an established securities market, the Redeeming Non-U.S. Holder has owned, directly or constructively (including through ownership of warrants) more than 5% of the shares of Public Stock at any time within the shorter of the five-year period preceding the disposition or such Redeeming Non-U.S. Holder’s holding period for the shares of Public Stock. There can be no assurance that the Public Stock will be treated as regularly traded on an established securities market for this purpose. |
Unless an applicable treaty provides otherwise, gain described in the first bullet point above will be subject to United Statestax at generally applicable U.S. federal income tax net of certain deductions, atrates as if the same graduated individual or corporate rates applicable to U.S. Holders (subject to an exemption or reduction in such tax as may be provided by an applicable income tax treaty). If theRedeeming Non-U.S. Holder were a U.S. resident. Any gains described in the first bullet point above of a Redeeming Non-U.S. Holder that is a foreign corporation dividends that are effectively connected income may also be subject to aan additional “branch profits tax” at a 30% rate (or lower treaty rate). Gain described in the second bullet point above will be subject to a 30% U.S. federal income tax rate.
If the third bullet point above applies to a Redeeming Non-U.S. Holder, gain recognized by such holder on the disposition of the Public Stock will be subject to tax at generally applicable U.S. federal income tax rates. In addition, we may be required to withhold U.S. federal income tax at a rate of fifteen percent (15%) of the amount realized upon such redemption. We cannot determine whether we will be a U.S. real property holding corporation in the future until we complete a business combination. We will be classified as a U.S. real property holding corporation if the fair market value of our “U.S. real property interests” equals or exceeds 50 percent of the sum of the fair market value of our worldwide real property interests plus our other assets used or held for use in a trade or business, as determined for U.S. federal income tax purposes.
If a Redeeming Non-U.S. Holder holds different blocks of Public Stock (generally, shares of Public Stock purchased or acquired on different dates or at different prices), such Redeeming Non-U.S. Holder is urged to consult its tax advisors to determine how the above rules apply to such Redeeming Non-U.S. Holder.
FATCA Withholding
Sections 1471 through 1474 of the Code and the Treasury Regulations and administrative guidance promulgated thereunder (commonly referred to as the “Foreign Account Tax Compliance Act” or “FATCA”) generally impose withholding at a rate of 30% (or such lower rateon payments of dividends on our Public Stock, to “foreign financial institutions” (which is broadly defined for this purpose and in general includes investment vehicles) and certain other Non-U.S. entities unless various U.S. information reporting and due diligence requirements (generally relating to ownership by U.S. persons of interests in or accounts with those entities) have been satisfied, or an exemption applies (typically certified as to by the delivery of a properly completed IRS Form W-8BEN-E). The IRS has issued proposed regulations (on which taxpayers may rely until final regulations are issued) that would generally not apply these withholding requirements to gross proceeds from sales or other disposition proceeds from our Public Stock. If FATCA withholding is imposed, a beneficial owner that is not a foreign financial institution generally will be entitled to a refund of any amounts withheld by filing a U.S. federal income tax return (which may entail significant administrative burden). Foreign financial institutions located in jurisdictions that have an intergovernmental agreement with the United States governing FATCA may be specifiedsubject to different rules. Holders of Public Stock are urged to consult their tax advisors regarding the effects of FATCA on their investment in our securities.
Information Reporting and Backup Withholding
In general, proceeds received from the exercise of redemption rights will be subject to backup withholding for a non-corporate Redeeming U.S. Holder that:
| · | fails to provide an accurate taxpayer identification number; |
| · | is notified by the IRS regarding a failure to report all interest or dividends required to be shown on his or her federal income tax returns; or |
| · | in certain circumstances, fails to comply with applicable certification requirements. |
A Redeeming Non-U.S. Holder generally may eliminate the requirement for information reporting and backup withholding by providing certification of its non-U.S. status, under penalties of perjury, on a duly executed applicable IRS Form W-8 or by otherwise establishing an applicableexemption.
Backup withholding is not an additional tax. Any amount withheld under these rules will be creditable against the Redeeming U.S. Holder’s or Redeeming Non-U.S. Holder’s U.S. federal income tax treaty).
As previously noted above, the foregoing discussion of certain material U.S. federal income tax consequences is included for general information purposes only and is not intended to be, and should not be construed as, legal or tax advice to any stockholder.Stockholder. We once again urge you to consult with your own tax adviser to determine the particular tax consequences to you (including the application and effect of any U.S. federal, state, local or foreign income or other tax laws) of the receipt of cash in exchange for shares in connection with the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal and any redemption of your Public Stock.
BUSINESS OF BANYAN AND CERTAIN INFORMATION ABOUT BANYAN
References in this section to “we,” “our,” or “us” refer to Banyan Acquisition Corporation.
General
We are a blank check company incorporated as a Delaware corporation on March 10, 2021 for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses or entities.
Initial Public Offeringand Private Placement
On January 24, 2022, Banyan consummated its Initial Public Offering of 24,150,000 Units, including the issuance of 3,150,000 Units as a result of the Initial Public Offering underwriters’ exercise of their over-allotment option in full. Each Unit consists of one share of Class A Common Stock and one-half of one redeemable warrant, with each whole warrant entitling the holder thereof to purchase one share of Class A Common Stock for $11.50 per share. The Units were sold at a price of $10.00 per unit, generating gross proceeds to Banyan of $241,500,000.
On January 24, 2022, simultaneously with the closing of the Initial Public Offering, Banyan completed the private placement of an aggregate of 11,910,000 Private Placement Warrants to the Sponsor, BTIG, LLC and I-Bankers Securities, Inc., including 1,260,000 Banyan Private Placement Warrants as a result of the Initial Public Offering underwriters’ exercise of their over-allotment option in full, at a purchase price of $1.00 per Private Placement Warrant, generating gross proceeds to Banyan of $11,910,000.
In addition, the Sponsor holds an aggregate of 7,095,375 Founder Shares. All of the shares of Class B Common Stock are convertible into Class A Common Stock on a one-for-one basis subject to adjustment.
A total of $246,330,000 (which amount includes $9,660,000 of the Initial Public Offering underwriters’ deferred discount), was placed in the Trust Account. In connection with the Business Combination, Banyan and the Initial Public Offering underwriters amended the underwriting agreement so that the deferred underwriting fees were lowered to $3,622,500.
Except with respect to interest earned on the funds held in the Trust Account that may be released to Banyan to pay its taxes, the funds held in the Trust Account will not be released from the Trust Account until the earliest of (i) the completion of Banyan’s initial business combination, (ii) the redemption of the Public Stock if Banyan is unable to complete its initial business combination within the combination period, subject to applicable law, or (iii) the redemption of the Public Stock properly submitted for redemption in connection with a stockholder vote to amend the Certificate of Incorporation to modify the substance or timing of Banyan’s obligation to allow redemption in connection with its initial business combination or to redeem 100% of the Public Stock if it has not consummated an initial business combination within the combination period or with respect to any other provisions relating to stockholders’ rights or pre-initial business combination activity.
Extension of Time to Complete a Business Combination
Our Initial Public Offering prospectus and Certificate of Incorporation provided that we had until April 24, 2023 to complete an initial business combination. On April 21, 2023, we held a special meeting of stockholders (the “Extension Meeting”) to, among other things, amend the Certificate of Incorporation to provide Banyan with the option to extend the date by which it must complete an initial business combination by eight months, to December 24, 2023. The Banyan stockholders approved the extension amendment proposal at the Extension Meeting and, on April 21, 2023, Banyan filed an extension amendment with the Secretary of State of Delaware and exercised the option to extend the time to complete a business combination by eight months from April 24, 2023 to December 24, 2023. In connection with the vote to approve the extension at the Extension Meeting, the holders of 20,151,313 Class A Common Stock properly exercised their right to redeem their shares for cash at a redemption price of approximately $10.42 per share, for an aggregate redemption amount of approximately $210,031,815. After giving effect to such redemptions, there was approximately $41,677,260 in the Trust Account.
Proposed Business Combination
As previously disclosed in the Current Report on Form 8-K filed with SEC on June 23, 2023, Banyan, Pinstripes and Panther Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Banyan, entered into the Business Combination Agreement, contemplating several transactions in connection with which Banyan will become the parent company of Pinstripes. The Business Combination Agreement and the transactions contemplated thereby were approved by the boards of directors of each of Banyan and Pinstripes. For more information about the Business Combination, refer to our registration statement on Form S-4 initially filed with the Securities and Exchange Commission on September 11, 2023, as amended from time to time.
The Business Combination Agreement provides for, among other things, (i) the governing documents of Banyan will be replaced by governing documents of the post-Business Combination company (“New Pinstripes”), (ii) Banyan will change its name to “Pinstripes Holdings, Inc.,” (iii) each share of Class A Common Stock, other than the Vesting Shares (as defined below), will continue as a share of Class A common stock of New Pinstripes, par value $0.0001 per share (“New Pinstripes Class A Common Stock”), (iv) each share of Class B Common Stock, other than the Vesting Shares, will be converted, on a one-for-one basis, into a share of New Pinstripes Class A Common Stock, (v) 50% of the shares of Common Stock held by the Sponsor Holders that are subject to forfeiture and/or vesting on the basis of achieving certain trading price thresholds following the closing of the Business Combination (the “Vesting Shares”) will be converted, on a one-for-one basis, into a share of Series B-1 common stock, par value $0.0001 per share of New Pinstripes and 50% of the Vesting Shares will be converted, on a one-for-one basis, into a share of Series B-2 common stock, par value $0.0001 per share of New Pinstripes, and (vi) each then-issued and outstanding whole warrant exercisable for one share of Class A Common Stock will become exercisable for one share of New Pinstripes Class A Common Stock at an exercise price of $11.50 per share on the terms and conditions set forth in the Warrant Agreement, dated as of January 19, 2022, by and between Banyan and Continental Stock Transfer & Trust Company, as warrant agent (as amended or amended and restated from time to time).
The consummation of the Business Combination is subject to the fulfillment of certain customary conditions, including the approval of Banyan’s and Pinstripes’ stockholders and accordingly, there can be no assurances that we will be able to consummate the Business Combination on the terms contemplated by the Business Combination Agreement.
Without the Charter Extension, Banyan believes that it may not be able to complete the Business Combination on or before the Original Termination Date. If that were to occur, Banyan would be precluded from completing the Business Combination and would be forced to liquidate even if Banyan stockholders are otherwise in favor of consummating the Business Combination.
If the Extension Amendment Proposal is approved, the removal from the Trust Account of the amount equal to the pro rata portion of funds available in the Trust Account with respect to such redeemed Public Stock will reduce Banyan’s net asset value. Banyan cannot predict the amount that will remain in the Trust Account following the Redemptions if the Extension Amendment Proposal is approved, and the amount remaining in the Trust Account may be only a small fraction of the $ that was in the Trust Account as of , 2023. Unless the Extension Amendment Proposal is approved, Banyan will not proceed with the Charter Extension. Banyan will also not proceed with the Charter Extension if it completes the Business Combination on or before the Termination Date.
Banyan believes that given Banyan’s expenditure of time, effort and money on the Business Combination, circumstances warrant ensuring that Banyan is in the best position possible to consummate the Business Combination and that it is in the best interests of Banyan’s stockholders that Banyan obtain the Charter Extension. Banyan believes the Business Combination will provide significant benefits to its stockholders.
You are not being asked to vote on the Business Combination at this time. If the Charter Extension Proposal or Redemption Election.
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The following table sets forth information regarding the beneficial ownership of our common stockBanyan’s Common Stock as of March 24,15, 2023, by:
| · | each person known by Banyan to be the beneficial owner of more than 5% of Banyan’s issued and outstanding shares of Common Stock; |
| · | each of Banyan’s officers and directors; and |
| · | all Banyan’s executive officers and directors as a group. |
Beneficial ownership is determined according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security if such person possesses sole or shared voting or investment power over that security, including options and warrants that are currently exercisable or exercisable within 60 days.
In connection with the Extension Meeting held on April 21, 2023, the holders of 20,151,313 shares of Class A Common Stock properly exercised their right to redeem their shares for cash at a redemption price of approximately $10.42 per share, for an aggregate redemption amount of approximately $210,031,815. Additionally, in connection with the Extension Meeting, the Sponsor converted 2,000,000 shares of Class B Common Stock on a one-for-one basis into shares of Class A Common Stock. After giving effect to such conversion and the Extension Amendment Redemptions, there are 11,243,687 shares of Common Stock outstanding, consisting of 5,998,687 shares of Class A Common Stock and our5,245,000 shares of Class B Common Stock. TheAdditionally, following such redemptions, the Sponsor Holders own, on as-converted basis, approximately 64.4% of the outstanding shares of Common Stock.
Notwithstanding the above, in the table below, percentage ownership of our common stock is based on 31,395,000 shares of our common stockCommon Stock outstanding as of the record date,March 15, 2023, consisting of 24,150,000 shares of our Class A Common Stock and 7,245,000 shares of our Class B Common Stock issued and outstanding.
Unless otherwise indicated, we believe that all persons named in the table have sole voting and investment power with respect to all shares of common stockCommon Stock beneficially owned by them. The following table does not reflect record or
Class A Common Stock | Class B Common Stock | |||||||||||||||||||
Name of Beneficial Owner(1) | Number of | Approximate | Number of | Approximate | Approximate | |||||||||||||||
| Five Percent Holders | ||||||||||||||||||||
| Banyan Acquisition Sponsor LLC(3) | 2,000,000 | 8.3 | % | 5,095,375 | 70.3 | % | 22.6 | % | ||||||||||||
| Highbridge Capital Management, LLC(4) | 2,278,448 | 9.4 | % | — | — | 7.3 | % | |||||||||||||
| Saba Capital Management, L.P. (5) | 1,569,187 | 6.5 | % | — | — | 5.0 | % | |||||||||||||
| Exos Asset Management LLC(6) | 349,779 | 1.5 | % | — | — | 1.1 | % | |||||||||||||
| Directors and Executive Officers of the Company | ||||||||||||||||||||
| Jerry Hyman(3) | 2,000,000 | 8.3 | % | 5,095,375 | 70.3 | % | 22.6 | % | ||||||||||||
| Keith Jaffee(3) | 2,000,000 | 8.3 | % | 5,095,375 | 70.3 | % | 22.6 | % | ||||||||||||
| George Courtot | — | — | 5,250 | * | * | |||||||||||||||
| Bruce Lubin | — | — | 39,375 | * | * | |||||||||||||||
| Otis Carter | — | — | 26,250 | * | * | |||||||||||||||
| Peter Cameron | — | — | — | — | — | |||||||||||||||
| All directors and executive officers as a group (six individuals) | 2,000,000 | 8.3 | % | 5,166,250 | 71.3 | % | 22.8 | % | ||||||||||||
* Represents beneficial ownership of the warrants offered in our IPO or the private placement warrants as such warrants are not exercisable within 60 days of the record date.
Name and Address of Beneficial Owner(1) | | | Class A Common Stock Beneficially Owned | | | Class B Common Stock Beneficially Owned(2) | | | % of Total Outstanding Shares | | |||||||||||||||||||||
| | Number of Shares | | | % | | | Number of Shares | | | % | | ||||||||||||||||||||
| Directors and Executive Officers | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Jerry Hyman(3) | | | | | — | | | | | | — | | | | | | 7,095,375 | | | | | | 97.9% | | | | | | 22.5% | | |
Keith Jaffee(3) | | | | | — | | | | | | — | | | | | | 7,095,375 | | | | | | 97.9% | | | | | | 22.5% | | |
| George Courtot | | | | | — | | | | | | — | | | | | | 5,250 | | | | | | * | | | | | | * | | |
| Bruce Lubin | | | | | — | | | | | | — | | | | | | 39,375 | | | | | | * | | | | | | * | | |
| Otis Carter | | | | | — | | | | | | — | | | | | | 26,250 | | | | | | * | | | | | | * | | |
| Peter Cameron | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| All executive officers and directors as a group (seven individuals) | | | | | — | | | | | | — | | | | | | 7,166,250(4) | | | | | | 98.9% | | | | | | 22.8% | | |
| Five Percent Holders | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Banyan Acquisition Sponsors LLC(3) | | | | | — | | | | | | — | | | | | | 7,095,375 | | | | | | 97.9% | | | | | | 22.5% | | |
Highbridge Capital Management, LLC(5) | | | | | 2,278,448 | | | | | | 9.4% | | | | | | — | | | | | | — | | | | | | 7.3% | | |
Saba Capital Management, L.P.(6) | | | | | 1,569,187 | | | | | | 6.5% | | | | | | — | | | | | | — | | | | | | 5.0% | | |
| (1) | Unless otherwise noted, the business address of each of the following entities or individuals is 400 Skokie Blvd., Suite 820, Northbrook, Illinois, 60062. |
| (2) | Interests shown consist solely of founder shares, classified as shares of Class B Common Stock. Such shares are convertible into shares of Class A Common Stock on a one-for-one basis, subject to adjustment, as more fully described under the heading “Description of Securities–Founder Shares” of our final prospectus (File No. 333-258599), filed in connection with our Initial Public Offering. |
| (3) | Banyan Acquisition Sponsor LLC, our Sponsor, is the record holder of 5,095,375 shares of Class B Common Stock and 2,000,000 shares of Class A Common Stock. Jerry Hyman and Keith Jaffee are the members of the board of managers of our Sponsor. As a result, Mr. Hyman and Mr. Jaffee may be deemed to share beneficial ownership of the shares held by our Sponsor. |
| (4) | According to a Schedule 13G filed with the SEC on February 2, 2023, Highbridge Capital Management, LLC is the investment adviser to certain funds and accounts (the “Highbridge Funds”) with respect to the 2,278,448 shares of Class A Common Stock directly held by the Highbridge Funds. The Highbridge Funds have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the 2,278,448 shares of Class A Common Stock. Highbridge SPAC Opportunity Fund, L.P., a Highbridge Fund, has the right to receive or the power to direct the receipt of dividends or the proceeds from the sale of more than 5% of the shares of Class A Common Stock. The principal business address for Highbridge Capital Management, LLC is 277 Park Avenue, 23rd Floor, New York, New York 10172. |
| (5) | According to a Schedule 13G/A filed with the SEC on February 14, 2023, Saba Capital Management, L.P., Saba Capital Management GP, LLC, and Mr. Boaz R. Weinstein may be deemed beneficial owners of 1,569,187 shares of Class A Common Stock. The funds and accounts advised by Saba Capital Management, L.P. have the right to receive the dividends from and proceeds of sales from the 1,569,187 shares of Class A Common Stock. The address of the business office of each of the reporting persons is 405 Lexington Avenue, 58th Floor, New York, New York 10174. |
| (6) | According to a Schedule 13G filed with the SEC on May 18, 2023, Exos Asset Management LLC (“Exos”) is the investment manager to Morgan Creek – Exos SPAC+ Fund, LP (“SPAC + Fund”) with respect to 349,799 shares of Class A Common Stock and may be deemed to beneficially own such shares. The address of Exos and SPAC + Fund is 1370 Broadway, Suite 1450, New York, NY 10018. |
If the Extension Amendment Proposal is approved and the Charter Amendment is filed, Banyan’s first annual meeting of stockholders will be held no later than December 31, 2024. If the Extension Amendment Proposal is not approved and a business addresscombination is not consummated by the Original Termination Date, there will be no further annual meetings of each of the following is c/oBanyan. You should direct any proposals to Banyan’s Chief Executive Officer at Banyan Acquisition Corporation, 400 Skokie Blvd,Blvd., Suite 820, Northbrook, Illinois 60062.
Unless Banyan Acquisition Sponsor LLC, our Sponsor, is the record holder of 7,095,375 shares of Class B Common Stock. Jerry Hyman and Keith Jaffee are the members of the board of managers of our Sponsor. As a result, Mr. Hyman and Mr. Jaffee may be deemed to share beneficial ownership of the shares held by our Sponsor.
| · | If the shares are registered in the name of the stockholder, the stockholder should contact us at our offices at Banyan Acquisition Corporation, 400 Skokie Blvd., Suite 820, Northbrook, Illinois, 60062, to inform us of his or her request; or |
| · | If a bank, broker or other nominee holds the shares, the stockholder should contact the bank, broker or other nominee directly. |
•
Banyan files reports, and other reports and information with the SEC. The SEC maintains an Internet web site that contains reports, proxy and information statements and other information regarding issuers, including us, that file electronically with the SEC. The public can obtain any documents that we file electronically with the SEC as required by the Exchange Act. You may access information on Banyan at the SEC web site, which contains reports, proxy statements and other information, at: http://www.sec.gov. We will providewww.sec.gov.
This proxy statement is available without charge to you,stockholders of Banyan upon written or oral request, a copy of the reports and other information filed with the SEC.
If you have questions about the proposals or this proxy statement, would like additional copies of this proxy statement, or need to receiveobtain proxy cards or other information related to the proxy solicitation, please contact Morrow Sodali, the proxy solicitor for Banyan, by calling (800) 662-5200 (toll-free), or banks and brokers can call (203) 658-9400, or by emailing .info@investor.morrowsodali.com. You will not be charged for any of the documents that you request.
To obtain timely delivery of the documents, in advance of the special meeting, you must make your request for informationthem no later than April 11,five business days before the date of the Stockholder Meeting, or no later than December , 2023.
38
PROPOSED AMENDMENT
TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OFOF
BANYAN ACQUISITION CORPORATION
Pursuant to Section 242 of the
Delaware General Corporation Law
BANYAN ACQUISITION CORPORATION, 2023
| 1. | The name of the Corporation is “Banyan Acquisition Corporation” The original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on March 10, 2021 (the “Original Certificate”). An amended and restated certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on January 19, 2022 and on April 21, 2023 (the “Amended and Restated Certificate of Incorporation”). |
| 2. | This Amendment to the Amended and Restated Certificate of Incorporation amends the Amended and Restated Certificate of Incorporation of the Corporation. |
| 3. | This Amendment to the Amended and Restated Certificate of Incorporation was duly adopted by the affirmative vote of the holders of 65% of the stock entitled to vote at a meeting of stockholders in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware (the “DGCL”). |
| 4. | The text of Section 9.1 of Article IX is hereby amended and restated to read in full as follows: |
(a) The provisions of this Article IXshall apply during the period commencing upon the effectiveness of this Amended and Restated Certificate and terminating upon the consummation of the Corporation’s initial Business Combination, and noan amendment to this Article IXshall be effective prior to the consummation of the initial Business Combination unless approved bywith the approval of the affirmative vote of the holders of at least sixty five percent (65%) of all then outstanding shares of the Common Stock. The Corporation has until 15 months from the closing of the OfferingJanuary 24, 2024 to consummate a Business Combination; provided, however,Combination.
Notwithstanding the foregoing or any other provisions of the Amended and Restated Certificate, in the event that if the Corporation anticipates that it mayhas not be able to consummateconsummated a Business Combination within 15 months from the closing of the Offering,by January 24, 2024, the Corporation may, atwithout another stockholder vote, elect to extend the optiondate to consummate the Business Combination on a monthly basis for up to twelve times by an additional one month each time after January 24, 2024, by resolution of the Board, if requested by Banyan Acquisition Sponsor LLC (the “Sponsor”) in writing, and upon five days’ advance notice prior to the applicable termination date, until January 24, 2025, provided that the Sponsor (or one or more of its affiliates, members or third-party designees) (the “Lender”) will deposit $ for each then-outstanding share of Class A Common Stock into the trust account (the “Trust Account”) for each such monthly extension, for an aggregate deposit of up to $ for each then issued and outstanding share of Class A Common Stock (if all twelve additional monthly extensions are exercised), extendin exchange for a non-interest bearing, unsecured promissory note issued by the period of timeCorporation to consummatethe Lender. If the Corporation completes a Business Combination, for an additional eight months (forit will, at the option of the Lender, repay the amounts loaned under the promissory note or convert a totalportion or all of 23 monthsthe amounts loaned under such promissory note into warrants, which warrants will be identical to the private placement warrants issued to the Sponsor at the time of the Offering. If the Corporation does not complete a Business Combination), subject toCombination by the Sponsor depositing additionalapplicable termination date, such promissory note will be repaid only from funds into a trust account (the “Trust Account”) in accordance with the termsheld outside of the trust agreement (the “Trust Agreement”) governing the Trust Account as amended, as described in the Corporation’s registration statement on Form S-1, as initially filed with the Securities and Exchange Commission (the “or will be forfeited, eliminated or otherwise forgiven.
SEC”) on August 6, 2021, as amended (the “Registration Statement”) and in the Corporation’s proxy statement dated March 30, 2023.
| 5. | The text of Section 9.2(d) of Article IX is hereby amended and restated to read in full as follows: |
(d) In the event that the Corporation has not consummated an initial Business Combination within 15 months from the closing of the Offeringby January 24, 2024 (or up to 23 months from the closing of the OfferingJanuary 24, 2025 in certain circumstances as described in Section 9.1(a)), the Corporation shall (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter subject to lawfully available funds therefor, redeem 100% of the Offering Shares in consideration of a per-share price, payable in cash, equal to the quotient obtained by dividing (A) the aggregate amount then on deposit in the Trust Account, including interest (net of taxes payable, and less up to $100,000 of such interest to pay dissolution expenses which shall be net of taxes payable thereon)expenses), by (B) the total number of then outstanding Offering Shares, which redemption will completely extinguish rights of the Public Stockholders (including the right to receive further liquidating distributions, if any), and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the remaining stockholders and the Board in accordance with applicable law, dissolve and liquidate, subject in each case to the Corporation’s obligations under the DGCL to provide for claims of creditors and other requirements of applicable law.
| 6. | The text of Section 9.7 of Article IX is hereby amended and restated to read in full as follows: |
Additional Redemption Rights. If, in accordance with Section 9.1(a), any amendment is made to this Amended and Restated Certificate that would modify the substance or timing of the Corporation’s obligation to allow redemptions in connection with the Corporation’s initial Business Combination or to redeem 100% of the Offering Shares if the Corporation has not consummated an initial Business Combination within 15 monthsby January 24, 2024 (or up to 23 months from the closing of the OfferingJanuary 24, 2025 in certain circumstances as described in Section 9.1(a)) from the date of the closing of the Offering,, or with respect to any other provision herein relating to stockholder’sstockholders’ rights or pre-initial Business Combination activity, the Public Stockholders shall be provided with the opportunity to redeem their Offering Shares upon the approval of any such amendment, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest (net of taxes payable), divided by the number of then outstanding Offering Shares. The Corporation’s ability to provide such opportunity is subject to the Redemption LimitationLimitation.
A-2
| BANYAN ACQUISITION CORPORATION | |||
| By: | |||
| Name: | Keith Jaffee | ||
| Title: | Chief Executive Officer | ||
PROPOSED AMENDMENT
TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BANYAN ACQUISITION CORPORATION
Name: Keith JaffeePursuant to Section 242 of the
Delaware General Corporation Law
Title: Chief Executive Officer
| 1. | The name of the Corporation is “Banyan Acquisition Corporation” The original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on March 10, 2021 (the “Original Certificate”). An amended and restated certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on January 19, 2022 and on April 21, 2023 (the “Amended and Restated Certificate of Incorporation”). |
| 2. | This Amendment to the Amended and Restated Certificate of Incorporation amends the Amended and Restated Certificate of Incorporation of the Corporation. |
| 3. | This Amendment to the Amended and Restated Certificate of Incorporation was duly adopted by the affirmative vote of the holders of 65% of the stock entitled to vote at a meeting of stockholders in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware (the “DGCL”). |
| 4. | The text of Section 9.2(a) of Article IX is hereby amended and restated to read in full as follows: |
(a) Prior to the consummation of the initial Business Combination, the Corporation shall provide all holders of Offering Shares with the opportunity to have their Offering Shares redeemed upon the consummation of the initial Business Combination pursuant to, and subject to the limitations of, Sections 9.2(b) and 9.2(c) (such rights of such holders to have their Offering Shares redeemed (which redemption may be in the form of a New York corporationrepurchase by the Corporation) pursuant to such Sections, the “Redemption Rights”) hereof for cash equal to the applicable redemption price per share determined in accordance with Section 9.2(b) hereof (the “TrusteeRedemption Price”). Capitalized termsNotwithstanding anything to the contrary contained in this Amendment, but not specifically definedAmended and Restated Certificate, there shall be no Redemption Rights or liquidating distributions with respect to any warrant issued pursuant to the Offering.
| 5. | The text of Section 9.2(e) of Article IX is hereby amended and restated to read in full as follows: |
(e) If the Corporation offers to redeem the Offering Shares in this Amendment, shall have the meanings ascribed to such terms in that certain Investment Management Trust Agreement, dated January 19, 2022, by and between the parties hereto (the “Trust Agreement”).
| 6. | The following text of Section 9.2(f) of Article IX is hereby deleted in its entirety and replaced with the following new Section 9.2(f): |
(f) If the Corporation conducts a tender offer pursuant to Section 9.2(b), the Corporation shall consummate the proposed initial Business Combination only if the Redemption Limitation is not exceeded.
| 7. | The text of Section 9.7 of Article IX is hereby amended and restated to read in full as follows: |
Additional Redemption Rights. If, in accordance with Section 9.1(a), any amendment is made to this Amended and Class B common stockRestated Certificate that would modify the substance or timing of the Company voting together as a single class (the “Consent ofCorporation's obligation to allow redemptions in connection with the Stockholders”);
Exhibit B and the Property in the Trust Account, including interest (which interest shall be net of any taxes payable thereon, and less up to $100,000 of interest that may be released to the Company to pay dissolution expenses) shall be distributed to the Public Stockholders of record as of such date;
IN WITNESS WHEREOF, Banyan Acquisition Corporation
| BANYAN ACQUISITION CORPORATION | |||
| By: | |||
| Name: | Keith Jaffee | ||
| Title: | Chief Executive Officer | ||
B-2PRELIMINARY PROXY CARD
SUBJECT TO COMPLETION
Banyan Acquisition Corporation
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, AS TRUSTEE
![[MISSING IMAGE: px_banyan01-bw.jpg]](https://capedge.com/proxy/DEF 14A/0001104659-23-038569/px_banyan01-bw.jpg)
THIS PROXY CARD IF YOU ARE VOTING ELECTRONICA FOLD HERE • DO NOT SEPARATE • INSERT IN ENVELOPE PROVIDED PROXY CARDIS SOLICITED BY THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” PROPOSALS 1, 2 AND 3. Proposal 1 — The Charter Amendment To amend (the “Charter Amendment”) our amended
FOR THE SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON DECEMBER , 2023.
The undersigned, revoking any previous proxies relating to these shares, hereby acknowledges receipt of the Notice and Proxy Statement, dated , 2023, in connection with the special meeting of stockholders (the “Stockholder Meeting”) of Banyan Acquisition Corporation (the “Banyan”) to be held at a.m. Eastern Time on December , 2023, via a virtual meeting, and hereby appoints Jerry Hyman and Keith Jaffee, and each of them (with full power to act alone), the attorneys and proxies of the undersigned, with power of substitution to each, to vote all stock of Banyan registered in the name provided, which the undersigned is entitled to vote at the Stockholder Meeting, and at any adjournments thereof, with all the powers the undersigned would have if personally present. Without limiting the general authorization hereby given, said proxies are, and each of them is, instructed to vote or act as follows on the proposals set forth in the accompanying proxy statement. THIS PROXY, WHEN EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED “FOR” PROPOSALS 1, 2 AND 3. |
(Continued and restated certificate of incorporation (our “charter”), which currently provides that (i) we have the option to extend the period by which we must consummate a business combination up to two times, each for an additional three months, for a total of six months, from April 24, 2023 (the “Original Termination Date”) to October 24, 2023 (the “Original Extended Date”) and (ii) our shares of Class B Common Stock (the “Class B Common Stock”) shall automatically convert into shares of our Class A Common Stock (the “Class A Common Stock”) in connection with the closing of a business combination and shall not be convertible at any other time, to instead provide that (i) we will have the option to extend the period by which we must consummate a business combination initially by three months to July 24, 2023 (such initial extension, the “Initial Extension Option”) and then by up to an additional five months, from July 24, 2023, to December 24, 2023 (the “Amended Extended Date”), with such additional extension option exercisable in five singlemonth increments (each such monthly extension option, a “Monthly Extension Option”), for an up to eight-month aggregate total extension period if the Initial Extension Option and each Monthly Extension Option are exercised, and with the Initial Extension Option and each such Monthly Extension Option exercisable upon five calendar days’ advance notice prior to the applicable monthly deadline (the 19th of each month) for exercising the Initial Extension Option and each such Monthly Extension Option and (ii) provide holders of shares of Class B Common Stock the right to convert any and all of their shares of Class B Common Stock to shares of Class A Common Stock on a one-for-one basis prior to the closing of a business combination at the election of the holder. Proposal 2 — The Trust Amendment To amend (the “Trust Amendment” and together with the Charter Amendment, the “Extension Amendments”) the Investment Management Trust Agreement entered into in connection with our initial public offering (“IPO”), dated January 19, 2022, by and between Continental Stock Transfer & Trust Company (the “Trustee”) and Banyan Acquisition Corporation (the “Trust Agreement”), to provide that the Original Termination Date provided for in the Trust Agreement, upon which assets held in the trust account (the “Trust Account”) established in connection with our IPO were to be liquidated, may be extended, at our option, initially by three months to July 24, 2023 pursuant to the exercise of the Initial Extension Optionmarked, dated and thensigned on a monthly basis, pursuant to the exercise of Monthly Extension Options, up to and until the Amended Extension Datereverse side)
| Please mark vote as indicated in this example | x | THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” PROPOSALS 1,2 AND 3. |
| Proposal No. 1—Extension Amendment Proposal— To amend Banyan’s amended and restated certificate of incorporation to extend the date by which Banyan has to consummate a business combination (the “Termination Date”) from December 24, | FOR ¨ | AGAINST ¨ | ABSTAIN ¨ |
Proposal No. 2—Redemption Limit Amendment Proposal— To amend Banyan’s amended and restated certificate of incorporation to eliminate the limitation that Banyan may not redeem public stock to the extent that such redemption would result in Banyan having net tangible assets of less than $5,000,001 (the “Redemption Limitation”) in order to allow Banyan to redeem public stock irrespective of whether such redemption would exceed the Redemption Limitation (the “Redemption Limitation Amendment,” and such proposal the “Redemption Limitation Amendment Proposal”). A copy of the proposed amendments is set forth in Annex B to the accompanying proxy statement. | FOR ¨ | AGAINST ¨ | ABSTAIN ¨ |
| Proposal No. 3—Adjournment Proposal— To adjourn the Stockholder Meeting to a later date or dates, if necessary, (i) to permit further solicitation and vote of proxies if, based upon the tabulated vote at the time of the Stockholder Meeting, there are insufficient shares of Class A common stock, par value $0.0001 per share and shares of Class B common stock, par value $0.0001 per share, in the capital of Banyan represented (either in person or by proxy) at the time of the Stockholder Meeting to approve the Extension Amendment Proposal or the Redemption Limitation Amendment Proposal and (ii) where the board or directors of Banyan has determined it is otherwise necessary. | FOR ¨ | AGAINST ¨ | ABSTAIN ¨ |
| Dated: | , 2023 |
| (Signature) |
| (Signature if held jointly) |
Signature should agree with name printed hereon. If stock isshares are held in the name of more than one person, EACH joint owner should sign. Executors, administrators, trustees, guardians, and attorneys should indicate the capacity in which they sign. Attorneys should submit powers of attorney. FOR AGAINST ABSTAIN FOR AGAINST ABSTAIN FOR AGAINST ABSTAIN
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PLEASE SIGN, DATE AND RETURN THE PROXY IN THE ENVELOPE ENCLOSED.ENCLOSED TO CONTINENTAL STOCK TRANSFER & TRUST COMPANY. THIS PROXY WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE UNDERSIGNED STOCKHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED “AGAINST” EACH OF“FOR” PROPOSALS 1, 2 AND 3 AND WILL GRANT DISCRETIONARY AUTHORITY TO VOTE UPON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE PROPOSALS.MEETING OR ANY ADJOURNMENTS THEREOF. THIS PROXY WILL REVOKE ALL PRIOR PROXIES SIGNED BY YOU. (Continued and to be marked, dated and signed, on the other side) FOLD HERE • DO NOT SEPARATE • INSERT IN ENVELOPE PROVIDED BANYAN ACQUISITION CORPORATION THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS FOR THE SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON [●], 2023