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 x
Filed
by a Party other than the Registrant ¨
Check the appropriate box:
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Preliminary Proxy Statement |
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Confidential, for Use of the Commission Only
(as permitted by Rule 14a-6(e)(2)) |
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Definitive Proxy Statement |
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Definitive Additional Materials |
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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)
Payment of Filing Fee (Check the appropriate
box):
| ¨ | Fee
paid previously with preliminary materials. |
| ¨ | Fee
computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a6(i)(1) and
0-11 |
PRELIMINARY
PROXY MATERIALS — SUBJECT TO COMPLETION
DATED
NOVEMBER 22, 2023
LETTER TO STOCKHOLDERS
OF BANYAN ACQUISITION CORPORATION
400 Skokie Blvd.
Suite 820
Northbrook, Illinois
60062
Dear Banyan Acquisition Corporation
Stockholder:
You are
cordially invited to attend a special meeting of Banyan Acquisition Corporation, a Delaware corporation
(“Banyan”), which 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 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 accompanying
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 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 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.
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 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.
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 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.
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 Certificate of Incorporation.
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 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 (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 |
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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 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 (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 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 Delaware General Corporation Law (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.
In the event of
a liquidation, the Sponsor, George Courtot, Bruce Lubin, Otis Carter, Kimberley Annette Rimsza, Matt Jaffee and Brett Biggs (collectively,
the “Sponsor Holders”) will not receive any monies held in the Trust Account as a result of their ownership of 7,245,000
shares of Class B Common Stock, which were issued to the Sponsor Holders prior to Banyan’s Initial Public Offering, and 11,910,000
Private Placement Warrants, which were purchased by the Sponsor, BTIG and I-Bankers in a private placement which occurred simultaneously
with the completion of Banyan’s Initial Public Offering. As a consequence, a liquidating distribution will be made only with respect
to the Public Stock.
If Banyan liquidates,
the Sponsor has agreed to indemnify us to the extent any claims by a 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 an acquisition agreement, reduce the amount of funds
in the Trust Account to below (i) $10.20 per share of Public Stock or (ii) such lesser amount per 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 who executed a waiver of any and
all rights to seek access to our Trust Account and except as to any claims under our indemnity of the underwriters of Banyan’s
initial public offering against certain liabilities, including liabilities under the Securities Act of 1933, as amended. Moreover, in
the event that an executed waiver is deemed to be unenforceable against a third party, the Sponsor will not be responsible to the extent
of any liability for such third-party claims. We cannot assure you, however, that the Sponsor would be able to satisfy those obligations.
Based upon the current amount in the Trust Account, we anticipate that the per-share price at which shares of Public Stock will be redeemed
from cash held in the Trust Account will be approximately $ . Nevertheless,
Banyan cannot assure you that the per share distribution from the Trust Account, if Banyan liquidates, will not be less than $ ,
plus interest, due to unforeseen claims of creditors.
Under 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. 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 less
formal positions recently taken by the staff of the SEC. To mitigate the risk of being viewed as operating an unregistered investment
company, Banyan currently intends, prior to the 24-month anniversary of its initial public offering (if the Termination Date is extended
past such date), to instruct Continental Stock Transfer & Trust Company, the trustee with respect to the Trust Account, to liquidate
the U.S. government treasury obligations or money market funds held in the Trust Account and thereafter to maintain the funds in
the Trust Account in cash in an interest-bearing demand deposit account at a bank until the earlier of the consummation of a business
combination and the liquidation of Banyan. Interest on such deposit account is currently % per annum,
but such deposit account carries a variable rate and Banyan cannot assure you that such rate will not decrease or increase significantly.
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. 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.
Record holders of
Common Stock at the close of business on , 2023 (the “Record
Date”) are entitled to vote or have their votes cast at the Stockholder Meeting. On the Record Date, there were 3,998,687 issued
and outstanding shares of Class 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 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.
The accompanying
proxy statement is dated , 2023 and is first being mailed to stockholders
on or about that date.
| |
By Order of the Board of Directors
of Banyan Acquisition Corporation |
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|
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|
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Jerry Hyman
Chairman of the Board of Directors
, 2023 |
TABLE OF CONTENTS
Page
Banyan
Acquisition CorpORATION
PROXY STATEMENT
FOR
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON dECEMBER , 2023
This
proxy statement and the enclosed form of proxy are furnished in connection with the solicitation of proxies by our board of directors
(the “Board”) for use at the special meeting of stockholders of Banyan Acquisition Corporation,
a Delaware corporation ( “Banyan,” “we,” “us” or “our”),
to be held at a.m., Eastern Time, on December , 2023 (the “Stockholder
Meeting”) as a virtual meeting, or at such other time and on such other date to which the meeting may be adjourned or postponed.
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 constitute forward-looking statements within the meaning of the federal securities laws. Forward-looking
statements relate to expectations, beliefs, projections, future plans and strategies, anticipated events or trends and similar expressions
concerning matters that are not 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. In some cases, you can identify these
forward-looking statements by the use of terminology such as “outlook,” “believes,” “expects,” “potential,”
“continues,” “may,” “will,” “should,” “could,” “seeks,” “approximately,”
“predicts,” “intends,” “plans,” “estimates,” “anticipates” or the negative
version of these words or other comparable words or phrases.
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 transactions 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
differ 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, except as required by applicable law. For a further
discussion of these and other factors that could cause Banyan’s future results, performance or transactions to differ significantly
from those expressed in any forward-looking statement, please see the section entitled “Risk Factors” in Banyan’s
Annual Report on Form 10-K for the year ended December 31, 2022, as filed with the Securities and Exchange Commission (the
“SEC”) on March 31, 2023 and in other reports Banyan files with the SEC. You should not place undue reliance
on any forward-looking statements, which are based only on information currently available to Banyan (or to third parties making the
forward-looking statements).
RISK FACTORS
In addition to
the below risk factors, you should consider carefully all of the risks described in our Annual Report on Form 10-K filed with the
SEC on March 31, 2023, any subsequent Quarterly Report on Form 10-Q filed with the SEC and in the other reports we file with
the SEC before making a decision to invest in our 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 will enable us to complete the Business Combination.
Approving
the Charter Extension involves a number of risks. Even if the Charter Extension is approved, we can provide no assurances that the Business
Combination will be consummated prior to the Charter Extension Date. Our ability to consummate the Business Combination is dependent on
a variety of factors, many of which are beyond our control. If the Charter Extension is approved, we expect to seek stockholder approval
of the Business Combination prior to the Charter Extension Date. We are required to offer stockholders the opportunity to redeem their
Public Stock in connection with the Extension Amendment Proposal and the Redemption Limitation Amendment Proposal. Even if the
Charter Extension is approved by our stockholders, it is possible that Redemptions will leave us with insufficient cash to consummate
the Business Combination on commercially acceptable terms, or at all. The fact that we will have separate redemption periods in connection
with the Charter Extension and the Redemption Limitation Amendment and the Business Combination vote 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.
Changes to laws or regulations
or in how such laws or regulations are interpreted or applied, or a failure to comply with any laws, regulations, interpretations or
applications, may adversely affect our business, including our ability to negotiate and complete our initial business combination.
We
are subject to the laws and regulations, and interpretations and applications of such laws and regulations, of national, regional, state
and local governments. In particular, we are required to comply with certain SEC and other legal and regulatory requirements, and our
consummation of an initial business combination may be contingent upon our ability to comply with certain laws, regulations, interpretations
and applications and any post-business combination company may be subject to additional laws, regulations, interpretations and applications.
Compliance with, and monitoring of, the foregoing may be difficult, time consuming and costly. Those laws and regulations and their
interpretation and application may also change from time to time, and those changes could have a material adverse effect on our business,
including our ability to negotiate and complete an initial business combination. A failure to comply with applicable laws or regulations,
as interpreted and applied, could have a material adverse effect on our business, including our ability to negotiate and complete an initial
business combination. The SEC has, in the past year, adopted certain rules and may, in the future adopt other rules, which may have a
material effect on our activities and on our ability to consummate an initial business combination, including the SPAC Proposed Rules
(as defined below) described below.
The SEC has recently issued proposed rules relating to certain
activities of SPACs. Certain of the procedures that we, a potential business combination target or others may determine to undertake in
connection with such proposals may increase our costs and the time needed to complete our initial business combination and may constrain
the circumstances under which we could complete an initial business combination. The need for compliance with the SPAC Proposed Rules
may cause us to liquidate the funds in the Trust Account or liquidate Banyan at an earlier time than we might otherwise choose.
On March 30, 2022, the SEC issued proposed
rules (the “SPAC Proposed Rules”) relating, among other things, to disclosures in SEC filings in connection with business
combination transactions between special purpose acquisition companies (“SPACs”) such as us and private operating
companies; the financial statement requirements applicable to transactions involving shell companies; the use of projections by SPACs
in SEC filings in connection with proposed business combination transactions; the potential liability of certain participants in proposed
business combination transactions; and the extent to which SPACs could become subject to regulation under the Investment Company Act of 1940,
as amended (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. The SPAC Proposed Rules have not yet been adopted, and may be adopted in the proposed form or in a different form that could
impose additional regulatory requirements on SPACs. Certain of the procedures that we, a potential business combination target, or others
may determine to undertake in connection with the SPAC Proposed Rules, or pursuant to the SEC’s views expressed in the SPAC Proposed
Rules, may increase the costs and time of negotiating and completing an initial business combination, and may constrain the circumstances
under which we could complete an initial business combination. The need for compliance with the SPAC Proposed Rules may cause us to liquidate
the funds in the Trust Account or liquidate Banyan at an earlier time than we might otherwise choose. Were we to liquidate, our warrants
would expire worthless, and our securityholders would lose the investment opportunity associated with an investment in the combined company,
including any potential price appreciation of our securities.
If we are deemed to be an
investment company for purposes of the Investment Company Act, we would be required 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 the Business Combination and instead
liquidate Banyan.
As described further above, the SPAC Proposed Rules
relate, among other matters, to the circumstances in which SPACs such as Banyan could potentially be subject to the Investment Company
Act and the regulations thereunder. The SPAC Proposed 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, including
a limited time period to announce and complete a de-SPAC transaction. Specifically, to comply with the safe harbor, the SPAC Proposed
Rules would require a company to file a report on Form 8-K announcing that it has entered into an agreement with a target company
for a business combination no later than 18 months after the effective date of its registration statement for its initial public
offering (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 IPO Registration Statement.
If we are deemed to be an investment company under
the Investment Company Act, our activities would be severely restricted. In addition, we would be subject to burdensome compliance requirements.
We do not believe that our principal activities will subject us to regulation as an investment company under the Investment Company Act.
However, if we are deemed to be an investment company and subject to compliance with and regulation under the Investment Company Act,
we would be subject to additional regulatory burdens and expenses for which we have not allotted funds. As a result, 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 initial business
combination and instead liquidate Banyan. Were we to liquidate, our warrants would expire worthless, and our securityholders would lose
the investment opportunity associated with an investment in the combined company, including any potential price appreciation of our securities.
To mitigate the risk that we might be deemed to be an investment
company for purposes of the Investment Company Act, we intend, prior to the 24-month anniversary of our initial public offering (if the
Termination Date (as defined below) is extended past such date), to instruct the trustee to liquidate the investments held in the Trust
Account and instead to hold the funds in the Trust Account in cash in an interest-bearing demand deposit account until the earlier
of the consummation of our initial business combination or our liquidation. As a result, following the liquidation of investments in the
Trust Account, we would likely receive minimal interest, on the funds held in the Trust Account, which would reduce the dollar amount
our public stockholders would receive upon any redemption or liquidation of Banyan.
The funds in the Trust Account have, since our
initial public offering, been held only in U.S. government treasury obligations with a maturity of 185 days or less or in money
market funds investing solely in U.S. government treasury obligations and meeting certain conditions under Rule 2a-7 under
the Investment Company Act. However, to mitigate the risk of us being deemed to be an unregistered investment company (including under
the subjective test of Section 3(a)(1)(A) of the Investment Company Act) and thus subject to regulation under the Investment
Company Act, we intend, prior to 24-month anniversary of our initial public offering (if the Termination Date is extended past such date),
to instruct Continental (as defined below), the trustee with respect to the Trust Account, to liquidate the U.S. government treasury
obligations or money market funds held in the Trust Account and thereafter to maintain the funds in the Trust Account in cash in an interest-bearing demand
deposit account at a bank until the earlier of the consummation of our initial business combination and the liquidation of Banyan. Interest
on such deposit account is currently % per annum, but such deposit account carries a variable rate and Banyan cannot assure you that
such rate will not decrease or increase significantly. Following such liquidation, we would likely receive minimal interest, on the funds
held in the Trust Account. However, interest previously earned on the funds held in the Trust Account still may be released to us to
pay our taxes, if any. As a result, any decision to liquidate the investments held in the Trust Account and thereafter to hold all funds
in the Trust Account in cash in an interest-bearing demand deposit account would reduce the dollar amount our public stockholders
would receive upon any redemption or liquidation of Banyan.
In addition, even
prior to the 24-month anniversary of the effective date of the initial public offering Registration Statement, we may be deemed
to be an investment company. The longer that the funds in the Trust Account are held in short-term U.S. government treasury
obligations or in money market funds invested exclusively in such securities, even prior to the 24-month anniversary, the greater
the risk that we may be considered an unregistered investment company, in which case we may be required to liquidate Banyan. Accordingly,
we may determine, in our discretion, to liquidate the securities held in the Trust Account at any time, even prior to the 24-month anniversary,
and instead hold all funds in the Trust Account in cash in an interest-bearing demand deposit account which would further reduce
the dollar amount our public stockholders would receive upon any redemption or liquidation of Banyan. Were we to liquidate, our warrants
would expire worthless, and our securityholders would lose the investment opportunity associated with an investment in the combined company,
including any potential price appreciation of our securities.
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 Stockholder 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 held on December , 2023, at a.m.,
Eastern Time. The Stockholder Meeting will be held 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. You can participate in the meeting, vote, and submit questions via live webcast
by visiting www.cstproxy.com/ .
| 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 Banyan’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 Units in the 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 Initial 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 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 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.
| 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 in connection with the Charter Extension
(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 amount remaining in the Trust Account may be significantly less than the approximately
$ that was in the Trust Account as of December ,
2023 (including interest net of taxes payable).
For more information, please
see “Proposal No. 1 — The Extension 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 directors and officers may result in conflicts of interest, including a conflict between what may be in
the best interests of Banyan and its stockholders and what may be best for a director’s personal interests when determining to
recommend that stockholders vote for the proposals. See the sections titled “Proposal No. 1 — The Extension
Amendment Proposal — Interests of the Sponsor and Banyan’s Directors and Officers,” “Proposal
No. 2 — The Redemption Limitation Amendment Proposal — Interests of the Sponsor and Banyan’s
Directors and Officers” and “Beneficial Ownership of Securities” for a further discussion of these considerations.
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
remove 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 Banyan’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 obtaining the necessary votes for approving the Extension Amendment Proposal and the Redemption Limitation
Amendment Proposal prior to the Stockholder Meeting in order to seek additional time to obtain sufficient votes in support of the Charter
Extension and the Redemption Limitation Amendment or where the Board has determined it is otherwise necessary. If both the Extension
Amendment Proposal and the Redemption Limitation Amendment Proposals are approved at the Stockholder Meeting, and the Board has not determined
that the charter Extension is not otherwise required, then the Adjournment Proposal will not be presented.
| 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 any time to cancel the Stockholder Meeting and not to submit to its stockholders the Extension Amendment Proposal and the
Redemption Limitation Amendment Proposal and implement the Charter Extension and the Redemption Limitation Amendment. 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.
| 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 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.
| 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 Extension Amendment Proposal and the
Redemption 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, the Redemption Limitation Amendment
Proposal or the Adjournment Proposal, and your 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” the 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 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 risk of being
viewed as operating an unregistered investment company (including pursuant to the subjective test of Section 3(a)(1)(A) of
the Investment Company Act of 1940), Banyan currently intends, prior to the 24-month anniversary of its Initial Public Offering
(if the Termination Date is extended past such date), to instruct Continental, the trustee managing the Trust Account, to liquidate the
U.S. government treasury obligations or money market funds held in the Trust Account and thereafter to maintain the funds in the
Trust Account in cash in an interest-bearing demand deposit account at a bank until the earlier of the consummation of a business
combination and the liquidation of Banyan. Interest on such deposit account is currently % per annum,
but such deposit account carries a variable rate and Banyan cannot assure you that such rate will not decrease or increase significantly.
| 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 not approved at the Stockholder Meeting or at any adjournment thereof 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 and not previously released to Banyan to pay its taxes, if any (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 Delaware
General Corporation Law (the “DGCL”) to provide for claims of creditors and the requirements of other applicable
law.
The
Sponsor Holders waived their rights to participate in any liquidation distribution with respect to the 5,245,000
shares of Class B Common Stock and 2,000,000 shares of Class A Common Stock (together, the “Founder
Shares”) held by them. There will be no distribution from the Trust Account with respect to Banyan’s warrants, which
will expire worthless in the event Banyan dissolves and liquidates the Trust Account.
| 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 the amount
equal to the pro rata portion of funds available in the Trust Account with respect to such redeemed Public Stock will reduce the amount
remaining in the Trust Account and increase the percentage interest of Banyan held by the Sponsor. 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.
| 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
Redemption Limitation Amendment Proposal is not approved at the Stockholder Meeting or at any adjournment thereof and following
Redemptions in connection with the Charter Extension Banyan doesn’t meet the Redemption Limitation, then the Charter Extension
will not be implemented and if the Business Combination is not completed on or before the 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 Banyan dissolves and liquidates the Trust Account.
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. |
| 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 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 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 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.
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 December
, 2023 (including interest not previously released
to Banyan to pay its taxes). Banyan will also not proceed with the Charter Extension if
it completes the Business Combination on or before the Termination Date.
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 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.
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 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.
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 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.
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—The Extension 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 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 later 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 thereon at the Stockholder 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 approval 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.
CERTAIN MATERIAL
U.S. FEDERAL INCOME TAX CONSIDERATIONS FOR STOCKHOLDERS EXERCISING REDEMPTION RIGHTS
The following discussion
is a summary of certain material U.S. federal income tax considerations for U.S. Holders and Non-U.S. Holders (each as defined below)
of Public Stock that elect to have their shares of Public Stock redeemed for cash if the Extension Amendment Proposal or the Redemption
Limitation Amendment Proposal is approved. This section 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; |
| · | taxpayers
that are subject to the mark-to-market accounting rules; |
| · | governments
or agencies or instrumentalities thereof; |
| · | tax-qualified
retirement plans; |
| · | 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 on current U.S. federal income tax laws as in effect on the date hereof, which is subject to change, possibly on
a retroactive basis, which may affect the U.S. federal 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 Banyan does not intend to seek, a ruling from the U.S. Internal Revenue Service (“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 urge 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 unit itself will not be treated
as an integrated instrument. Accordingly, the cancellation or separation of the Units in connection with the exercise of redemption rights
generally should not be a taxable event for U.S. federal income tax purposes. This position is not free from doubt, and no assurance
can be given that the IRS would not assert, or that a court would not sustain, a contrary position.
Certain U.S. Federal
Income Tax Considerations to U.S. Stockholders
This
section is addressed to Redeeming U.S. Holders (as defined below) of Public Stock that elect to have their Public Stock redeemed for
cash as described in the section entitled “Proposal No. 1 — The Extension Amendment Proposal — Redemption
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 so redeems its shares and is, for U.S. federal income tax purposes:
| · | 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 of the Public Stock redeemed under Section 302 of the Code or is treated as
a distribution under Section 301 of the Code. If the redemption qualifies as a sale or other disposition of such Redeeming U.S. Holder’s
shares, such Redeeming U.S. Holder will generally be required to recognize gain or loss in an amount equal to the difference, if any,
between the amount of cash received and the tax basis of the shares redeemed. Such gain or loss should be treated as capital gain or loss
if such shares were held as a capital asset on the date of the redemption. Any such capital gain or loss generally will be long-term capital
gain or loss if the Redeeming U.S. Holder’s holding period for such shares exceeds one year at the time of the redemption. A Redeeming
U.S. Holder’s tax basis in such Redeeming U.S. Holder’s shares generally will equal the cost of such shares.
Whether a redemption of Public Stock
qualifies for sale treatment will depend largely on the total number of shares of our stock treated as held by the redeemed 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 generally will
qualify as a sale of such shares if the redemption either (i) is “substantially disproportionate” with respect to
the Redeeming U.S. Holder, (ii) results in a “complete redemption” of such Redeeming U.S. Holder’s interest
in Banyan or (iii) is “not essentially equivalent to a dividend” with respect to such Redeeming U.S. Holder. These
tests are explained more fully below.
For purposes of
such tests, a Redeeming U.S. Holder takes into account not only shares directly owned by such Redeeming U.S. Holder, but also shares
that are constructively owned by such Redeeming U.S. Holder. A Redeeming U.S. Holder may constructively own, in addition to Public Stock
owned directly, Public Stock owned by certain related individuals and entities in which such Redeeming U.S. Holder has an interest or
that have an interest in such Redeeming U.S. Holder, as well as any shares such Redeeming U.S. Holder has a right to acquire by exercise
of an option, which would generally include shares which could be acquired pursuant to the exercise of the Public Warrants.
The redemption generally
will be “substantially disproportionate” with respect to a Redeeming U.S. Holder if the percentage of Banyan’s outstanding
voting shares that such Redeeming U.S. Holder directly or constructively owns immediately after the redemption is less than 80% of the percentage of Banyan’s outstanding voting shares 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 owns less than 50% of the total combined voting power of Banyan. There will be a complete redemption of such Redeeming U.S. Holder’s interest
if either (i) all of the shares directly or constructively owned by such Redeeming U.S. Holder are redeemed or (ii) all of
the shares directly owned by such Redeeming U.S. Holder are redeemed and such Redeeming U.S. Holder is eligible to waive, and effectively
waives in accordance with specific rules, the attribution of the shares owned by certain family members and such Redeeming U.S. Holder
does not constructively own any other shares. The redemption will not be essentially equivalent to a dividend if it results in a “meaningful
reduction” of such Redeeming U.S. Holder’s proportionate interest in Banyan. Whether the redemption will result in a “meaningful
reduction” in such Redeeming U.S. Holder’s proportionate interest will depend on the particular facts and circumstances applicable
to it. The IRS has indicated in a published ruling that even a small reduction in the proportionate interest of a small minority Stockholder
in a publicly held corporation that exercises no control over corporate affairs may constitute such a “meaningful reduction.”
If none of the above
tests is satisfied, the redemption will be treated as a distribution with respect to the shares, in
which case the Redeeming U.S. Holder will be treated as receiving a corporate distribution as discussed below. A holder should consult with its own tax advisors as to the tax consequences of a redemption.
Redemption of Public Stock Treated
as Corporate Distribution
If the redemption
is treated as a corporate distribution, such distribution generally will constitute a dividend for U.S. federal income tax purposes to
the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. If the
redemption is treated as a corporate distribution treated as dividend, such dividends paid to a Redeeming U.S. Holder that is a taxable
corporation generally will qualify for the dividends received deduction if the requisite holding period is satisfied. With certain exceptions
(including, but not limited to, dividends treated as investment income for purposes of investment interest deduction limitations), and
provided certain holding period requirements are met, dividends paid to a non-corporate Redeeming U.S. Holder generally will constitute
“qualified dividends” that will be subject to tax at the maximum tax rate accorded to long-term capital gains. 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 with respect to the dividends received deduction or the preferential tax rate on qualified
dividend income, as the case may be.
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 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 application of those rules, any remaining tax basis of the Redeeming U.S. Holder in the redeemed Public Stock will be
added to the Redeeming U.S. Holder’s adjusted tax basis in its remaining Public Stock, or, 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 Public Stock Treated
as a Sale 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’s initial basis for Public Stock received upon exercise
of a whole warrant) less any prior distributions treated as a return of capital. Any such capital gain or loss will be long-term capital
gain or loss if the Redeeming U.S. Holder’s holding period for the Public Stock so disposed of exceeds one year. Long-term capital
gain realized by a non-corporate Redeeming U.S. Holder generally will be taxable at a reduced rate. The 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 for long-term capital gain or loss.
If a Redeeming 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 consult its tax advisors to determine how the above rules apply to such Redeeming
U.S. Holder.
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. Stockholders
This
section is addressed to Redeeming Non-U.S. Holders (as defined below) of Public Stock that elect to have their shares redeemed for cash
as described in the section entitled “Proposal No. 1 — The Extension Amendment Proposal — Redemption
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 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 a redemption for a Redeeming Non-U.S. Holder who elects to have its shares redeemed
will generally be characterized in the same manner as a U.S. Stockholder for U.S. federal income tax purposes. See the discussion above
under “Certain U.S. Federal Income Tax Considerations to U.S. Stockholders.”
Redeeming Non-U.S.
Holders of shares considering exercising their redemption rights are urged to consult their tax advisors as to whether the redemption
of their shares will be treated as a sale or as a distribution under the Code, and whether they will be subject to U.S. federal income
tax on any gain recognized or dividends received as a result of the redemption based upon their particular circumstances.
Redemption of Public Stock Treated
as a Corporate Distribution
If the redemption
qualifies as a corporate distribution, such distribution generally will constitute a dividend for U.S. federal income tax purposes to
the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles, and provided
such dividends are not effectively connected with the Redeeming Non-U.S. Holder’s conduct of a trade or business within the United
States, we will be required to withhold tax from the gross amount of the dividend at a rate of 30%, unless such Redeeming Non-U.S. Holder
is eligible for a reduced rate of withholding tax under an applicable income tax treaty and provides proper certification of its eligibility
for such reduced rate (usually on an IRS Form W-8BEN or W-8BEN-E). 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 Non-U.S. Holder’s
adjusted tax basis in such Redeeming Non-U.S. Holder’s Public Stock. Any remaining excess will be treated as gain realized on the
sale or other disposition of such Redeeming Non-U.S. Holder’s Public Stock as discussed below. In addition, if we determine that
we are likely to be classified as a “U.S. real property holding corporation” (see “— Redemption of Public
Stock Treated as a Sale or Other Disposition” below), we will withhold 15% of any distribution that exceeds our current and
accumulated earnings and profits.
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 the Redeeming Non-U.S. Holder’s conduct of a trade or business within the United States. 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 U.S. federal income or withholding
tax in 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 tax at generally applicable U.S. federal
income tax rates as if the Redeeming 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 may also be subject to an 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% on 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 subject 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 exemption.
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 liability or refundable to the extent that it exceeds this liability, provided that the
required information is timely furnished to the IRS and other applicable requirements are met.
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. We once again urge you to consult
with your 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 Offering
and 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 Limitation Proposal is approved
and implemented and you do not elect to redeem your Public Stock, provided that you are a stockholder on the record date for the special
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 Public Stock for cash in the event the Business Combination is approved and completed or we have
not consummated a business combination by the Charter Extension Date.
BENEFICIAL OWNERSHIP
OF SECURITIES
The following table
sets forth information regarding the beneficial ownership of Banyan’s Common Stock as of March 15, 2023, based on information
obtained from the persons named below, with respect to the beneficial ownership of shares of Banyan’s Common Stock, 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 5,245,000 shares of Class B Common Stock. Additionally, 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 is based on 31,395,000 shares of Common Stock outstanding as of March 15, 2023,
consisting of 24,150,000 shares of Class A Common Stock and 7,245,000
shares of Class B Common Stock. The table below does not reflect record of beneficial ownership
of any shares of Common Stock issuable upon exercise of the warrants because these securities are not exercisable within 60 days of this
proxy statement.
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
Stock beneficially owned by them.
| | |
| Class A Common Stock
| | |
| Class B Common Stock
| | |
| | |
Name of Beneficial Owner(1) | |
| Number of
Shares
Beneficially
Owned | | |
| Approximate
Percentage
of Class | | |
| Number of
Shares
Beneficially
Owned(2) | | |
| Approximate
Percentage
of Class | | |
| Approximate
Percentage of
Outstanding
Shares | |
| 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 less than 1%.
| (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. |
FUTURE STOCKHOLDER
PROPOSALS
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 combination is not consummated by the Original Termination Date, there will be no further annual
meetings of Banyan. You should direct any proposals to Banyan’s Chief Executive Officer at Banyan Acquisition Corporation, 400 Skokie
Blvd., Suite 820, Northbrook, Illinois 60062.
HOUSEHOLDING
INFORMATION
Unless Banyan has
received contrary instructions, Banyan may send a single copy of this proxy statement to any household at which two or more stockholders
reside if Banyan believes the stockholders are members of the same family. This process, known as “householding,” reduces
the volume of duplicate information received at any one household and helps to reduce Banyan’s expenses. However, if stockholders
prefer to receive multiple sets of Banyan’s disclosure documents at the same address this year or in future years, the stockholders
should follow the instructions described below. Similarly, if an address is shared with another stockholder and together both of the
stockholders would like to receive only a single set of Banyan’s disclosure documents, the stockholders should follow these instructions:
| · | 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. |
WHERE YOU CAN
FIND MORE INFORMATION
Banyan files reports,
proxy statements and other information 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.
This proxy statement
is available without charge to stockholders of Banyan upon written or oral request. If you would like additional copies of this proxy
statement or if you have questions about the proposals to be presented at the Stockholder Meeting, you should contact Banyan in writing
at Banyan Acquisition Corporation, 400 Skokie Blvd., Suite 820, Northbrook, Illinois,
60062 or by telephone at (847) 757-3812.
If you have questions
about the proposals or this proxy statement, would like additional copies of this proxy statement, or need to obtain 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, you must request them no later than five business days before the date of the Stockholder Meeting, or no later
than December , 2023.
ANNEX
A
PROPOSED AMENDMENT
TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BANYAN ACQUISITION
CORPORATION
Pursuant to Section 242
of the
Delaware General Corporation Law
BANYAN
ACQUISITION CORPORATION, a corporation organized and existing under the laws of the State
of Delaware (the “Corporation”), does hereby certify as follows:
| 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 IX shall 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 an amendment
to this Article IX shall be effective prior to the consummation of the initial Business Combination with 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 January 24, 2024 to consummate a Business Combination.
Notwithstanding
the foregoing or any other provisions of the Amended and Restated Certificate, in the event that the Corporation has not consummated
a Business Combination by January 24, 2024, the Corporation may, without another stockholder vote, elect to extend the date 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), in exchange for a non-interest bearing, unsecured promissory note issued by the Corporation to
the Lender. If the Corporation 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 issued to the Sponsor at the time of the Offering. If the Corporation 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.
(b) Immediately
after the Offering, a certain amount of the net offering proceeds received by the Corporation in the Offering (including the proceeds
of any exercise of the underwriters’ over-allotment option) and certain other amounts specified in the Registration Statement,
shall be deposited in the Trust Account, established for the benefit of the Public Stockholders (as defined below) pursuant to the Trust
Agreement. Except for the withdrawal of interest to pay taxes, none of the funds held in the Trust Account (including the interest earned
on the funds held in the Trust Account) will be released from the Trust Account until the earliest of (i) the completion of the
initial Business Combination, (ii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation is unable
to complete its initial Business Combination by January 24, 2024 (or up to January 24, 2024 in certain circumstances as described
in Section 9.1(a)), and (iii) the redemption of Offering Shares in connection with a vote seeking to amend any provisions of
this Amended and Restated Certificate (A) to 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 by January 24, 2024 (or up to January 24, 2025 in certain circumstances as
described in Section 9.1(a)) or (B) relating to stockholders’ rights or pre-initial Business Combination activity (as
described in Section 9.7). Holders of shares of the Common Stock included as part of the units sold in the Offering (the “Offering
Shares”) (whether such Offering Shares were purchased in the Offering or in the secondary market following the Offering
and whether or not such holders are the Sponsor or officers or directors of the Corporation, or affiliates of any of the foregoing),
solely in their capacity as such, are referred to herein as “Public Stockholders.”
| 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 by January 24, 2024 (or up to January 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), 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 by January 24, 2024 (or up to January 24, 2025 in certain circumstances as
described in Section 9.1(a)), or with respect to any other provision herein relating to stockholders’ 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 Limitation.
IN
WITNESS WHEREOF, Banyan Acquisition Corporation has caused this Amendment to the Amended and Restated
Certificate of Incorporation to be duly executed in its name and on its behalf by an authorized officer as of this day of , 2023.
| |
BANYAN
ACQUISITION CORPORATION |
|
| |
|
|
| |
By: |
|
|
| |
Name: |
Keith
Jaffee |
|
| |
Title: |
Chief
Executive Officer |
|
ANNEX B
PROPOSED AMENDMENT
TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BANYAN ACQUISITION
CORPORATION
Pursuant to Section 242
of the
Delaware General Corporation Law
BANYAN
ACQUISITION CORPORATION (the “Corporation”), a corporation organized
and existing under the laws of the State of Delaware, does hereby certify as follows:
| 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 repurchase 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 “Redemption Price”). Notwithstanding anything to the contrary contained in this Amended 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 conjunction with a stockholder vote
on an initial Business Combination, the Corporation shall consummate the proposed initial Business Combination only if such initial Business
Combination is approved by the affirmative vote of the holders of a majority of the shares of the Common Stock that are voted at a stockholder
meeting held to consider such initial Business Combination.
| 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 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 by January 24, 2024 (or
up to January 24, 2025 in certain circumstances as described in Section 9.1(a)), or with respect to any other provision herein relating
to stockholders' 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.
IN
WITNESS WHEREOF, Banyan Acquisition Corporation has caused this Amendment to the Amended and Restated
Certificate of Incorporation to be duly executed in its name and on its behalf by an authorized officer as of this day of , 2023.
| |
BANYAN
ACQUISITION CORPORATION |
|
| |
|
|
| |
By: |
|
|
| |
Name: |
Keith
Jaffee |
|
| |
Title: |
Chief
Executive Officer |
|
PRELIMINARY
PROXY CARD
SUBJECT
TO COMPLETION
Banyan Acquisition
Corporation
400 Skokie Blvd., Suite 820
Northbrook, Illinois
60062
SPECIAL MEETING
OF STOCKHOLDERS OF BANYAN ACQUISITION CORPORATION
YOUR VOTE IS
IMPORTANT
THIS PROXY IS
SOLICITED BY THE BOARD OF DIRECTORS
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
to be marked, dated and signed on reverse 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, 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 (the “Extension Amendment Proposal”). A copy of the proposed amendments is set forth in Annex A to the accompanying proxy statement. |
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
¨ |
| (Signature) |
| (Signature if held jointly) |
Signature should agree with name printed
hereon. If shares 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.
PLEASE SIGN, DATE AND RETURN THE PROXY IN THE ENVELOPE 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 “FOR” PROPOSALS 1, 2 AND 3 AND WILL GRANT DISCRETIONARY AUTHORITY TO VOTE
UPON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE MEETING OR ANY ADJOURNMENTS THEREOF. THIS PROXY WILL REVOKE ALL PRIOR PROXIES
SIGNED BY YOU.
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